Citation Nr: 18154369 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-64 004 DATE: 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to service connection for neurobehavioral effects resulting in depression, fatigue, poor concentration, memory loss and insomnia, to include as due to an undiagnosed illness and/or due to contaminated water at Camp Lejeune. November 29, 2018 ORDER Entitlement to service connection for PTSD is granted. REMANDED Entitlement to service connection for neurobehavioral effects resulting in depression, fatigue, poor concentration, memory loss and insomnia, to include as due to an undiagnosed illness and/or due to contaminated water at Camp Lejeune, is remanded.   FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, his PTSD is related to his active duty service. CONCLUSION OF LAW The criterion for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304 (f) (3) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1980 to December 1980 and in the United States Army from November 1988 to April 1998. The Veteran also served in the Florida Army National Guard from September 1985 to September 1986. The Board notes that the Veteran’s active service for the period of August 25, 1994 to April 10, 1998 was administratively determined by the Department of Veterans Affairs (VA) in August 2000 to be subject to a Bad Conduct Discharge, which is a bar to VA compensation benefits based on that period of service. See 38 C.F.R. § 3.12 (a) (2017). These matters come before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and August 2015 rating decisions of the VA Regional Office (RO) in St. Petersburg, Florida. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, as to the claim of service connection for PTSD, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. Entitlement to service connection for PTSD. The Veteran contends that he is entitled to service connection for PTSD due to his service in Southwest Asia. The Board concludes that the Veteran has a current diagnosis of PTSD that is related to his active duty service in Southwest Asia during Operation Desert Storm. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), 3.304 (f)(3). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV or 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). In addition, 38 C.F.R. § 3.304 (f)(3) provides that if a claimed PTSD stressor is related to a veteran's "fear of hostile military or terrorist activity" and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not 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. "'Fear and hostile military or terrorist activity' means 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, such as from... incoming artillery, rocket, or mortar fire, ... and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror." 38 C.F.R. § 3.304 (f)(3). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See, Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See, Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See, Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). A November 2013 VA Persian Gulf Protocol Exam Consult notes the Veteran reported experiencing nightmares and trouble sleeping after returning from the Persian Gulf in 1991 and stated that he felt he handled it well so did not seek help while in the military. The Veteran stated that he drove a fuel truck and was stationed in Saudi Arabia on the border with Iraq from October 1990 until February 1991 when he entered into Iraq during the ground war. The Veteran reported having to put on chemical warfare gear numerous times until given the all clear. A December 2013 VA treatment record notes the Veteran was administered DAPS, MCMI-3 and MMPI-2 psychological testing by a VA psychologist. Upon testing and a clinical interview, it was noted that the Veteran’s profile is generally consistent with the profiles of individuals who have been diagnosed with PTSD. It was further noted that “[t]he DAPS profile was valid and interpretable” and that the Veteran “reported…fear of being seriously hurt at war,” and that “he rated "being almost killed in Desert Storm" as his index trauma.” It was also noted that the Veteran had significantly elevated scores on all of the PTSD scales, including re-experiencing, avoidance and hyperarousal. The examiner noted that overall, “[the] assessment results were valid and interpretable. Although [the Veteran] endorsed out of ordinary distress, his response profile did not suggest overstating or understating psychopathology.” The diagnostic impressions were PTSD and unspecified depressive disorder, noting that the Veteran “endorsed (a) exposure to trauma, (b) persistently re-experiencing that trauma, (c) persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness, and (d) noticing increased arousal.” In a December 2013 VA mental health diagnostic note, the Veteran stated that during Desert Storm he was a driver in a tank battalion and was set up in a “V shape” with fuel and supply trucks and further stated that he came under hostile fire and saw dead bodies while traveling. The Veteran endorsed: repeated disturbing memories, thought or images of the stressful event; repeated disturbing dreams of the stressful experiences; suddenly acting or feeling as if the stressful experience were happening again; feeling very upset when something reminds him of the stressful experience; having physical reactions when something reminds him of the stressful experience; avoiding thinking or talking about the stressful experience; avoiding activities or situations because they remind him of the stressful experience; loss of interest in activities that he used to enjoy; feeling distant or cut off from other people; feeling emotionally numb or being unable to have loving feelings for those close to him; feeling as if his future will be cut short; trouble falling or staying asleep; feeling irritable or having angry outbursts; having difficulty concentrating; being super alert; and feeling jumpy. It was noted that DSM-IV PTSD criteria B, C and D were met, and that a diagnosis of PTSD is suggested. A December 2013 VA psychiatry assessment notes the Veteran reported having problems with irritability for which he will need an hour to calm down. The Veteran reported a long history of social avoidance and withdrawal, tending to keep to himself. The Veteran further reported problems with sleeping, and anxiety, stating the he will have periods of higher energy and go without sleep for a night, has periods of feeling good but also has anxiety. He also reported spending money but not remembering how he spent it. The Veteran stated that he was stationed with a tank battalion in Desert Storm, witnessed combat, saw dead bodies and felt his life was in danger. It was noted that the Veteran’s emotional response to his stressor was intense fear, helplessness and horror. The Veteran endorsed current symptoms of depression, insomnia, anxiety, irritability and nightmares. A DSM-5 diagnosis of PTSD was rendered. In December 2013, VA received the Veteran’s claim for PTSD and a statement from the Veteran in which he asserted that during Desert Storm he was almost killed by an Iraqi tank, which a staff sergeant had to destroy. The Veteran stated he witnessed dead bodies being hit by mortar rounds and that his unit was attacked by Iraqis. The Veteran asserted the date of incident as October 4, 1989. The Board notes that the Veteran’s service personnel records verify the Veteran was stationed in Saudi Arabia from October 5, 1990 to April 18, 1991. Furthermore, certificates from the 1st Cavalry Division and 18th Airborne Corps of the United States Army verify his participation in Operations Desert Shield and Desert Storm. A January 2016 VA treatment record notes the Veteran was given a Beck Depression Inventory, with the Veteran scoring 41 out of a possible 63. It was noted that the Veteran’s score indicated severe depression. The Veteran endorsed feeling sad all the time, feeling hopeless about his future, anhedonia, irritability, lack of energy, fatigue and difficulty concentrating. It was noted that the Veteran expressed more concern for his fatigue than his depression. The Veteran was afforded a VA PTSD examination in January 2016. It was noted that the Veteran has no mental disorder that conforms with DSM-5 criteria. It was noted that the Veteran’s reported stressor, his service in Operation Desert Storm, meets criteria A for PTSD. The Veteran endorsed recurrent distressing dreams, avoidance, markedly diminished interest in significant activities, hypervigilance, exaggerated startle response, problems with concentration and sleep disturbance. No other mental health symptoms were noted, but the Veteran endorsed intermittent depressed mood and anhedonia. The examiner stated the Veteran completed a forced questionnaire and “endorsed a number of symptoms and impairment that are highly atypical of individuals who have genuine psychiatric or cognitive disorders.” The examiner stated that the Veteran does not have a DSM-5 diagnosis of PTSD, noting that the Veteran only had one of the required responses for Criteria D. The examiner further stated that “[t]he fact that the veteran was not diagnosed with a DSM-5 mental disorder is not tantamount to saying that he does not have a mental disorder. Instead, it reflects that because the veteran was uncooperative the undersigned was unable to differentiate possible legitimate symptoms from feigned symptoms.” Here, the examiner concluded that the Veteran was not cooperative and feigning symptoms based on a score on a self-administered test, but did not discuss what that test was or what the criteria were that led him to believe the Veteran was feigning symptoms. The Board further notes that the examiner avoided any discussion of the November and December 2013 treatment records showing a DSM-5 diagnosis of PTSD by a VA psychiatrist or any of the subsequent treatment records from that same psychiatrist repeatedly noting a DSM-5 diagnosis of PTSD. The Board also notes that a thorough search of the VA treatment records would have yielded numerous references of anhedonia, feelings of worthlessness and hopelessness and relationship problems, all of which could have applied to Criteria D. The Board notes that the examiner’s conclusion that the Veteran does not have a DSM-5 diagnosis of PTSD was followed by a statement that this non-diagnosis was “not tantamount to saying that he does not have a mental disorder.” The Board finds this examination to be utterly inadequate and of no probative value. A February 2016 VA treatment record notes the Veteran scored 18 on the PHQ-9 Depression Scale, which was noted as warranting treatment for depression with either antidepressants, psychotherapy or a combination of both. Furthermore, it was noted that a PTSD diagnosis is suggested, though DSM-IV criteria were being used. In a March 2016 private medical opinion, C. L. K., a professional counselor, stated that he reviewed the Veteran's file and stated that the Veteran has PTSD. The doctor noted that the Veteran reported having nightmares and flashbacks, avoiding crowds, sleep problems and hypervigilance. The doctor then opined that it is more likely than not that the Veteran's PTSD is related to the Veteran's service, noting that the Veteran was in Desert Storm in 1990, saw many firefights, saw dead bodies and feared for his life. The Board notes that C. L. K. did not specify which version of the DSM was used for this diagnosis. Here, the counselor provides a rational basis for his diagnosis of PTSD and for his conclusion that it is related to the Veteran’s combat experiences, but does not state whether the diagnosis is based on DSM-4 or DSM-5. As such, the opinion is of limited probative value. An August 2016 VA treatment record notes the Veteran reported symptoms of depression, insomnia, anxiety, irritability and nightmares. DSM-5 diagnoses of PTSD and unspecified depressive disorder were noted. An October 2016 letter from the Veteran's VA psychiatrist notes the Veteran has diagnoses of PTSD and unspecified depressive disorder and has been under his care since December 2013. Though the Board notes that this letter provides no opinion as to the etiology of the Veteran’s PTSD, the Board notes that this it is written by the same VA psychiatrist who diagnosed the Veteran with DSM-5 PTSD in the above-referenced December 2013 VA psychiatry assessment. The Board notes that there are numerous VA treatment records from this psychiatrist noting the Veteran has a current DSM-5 diagnosis of PTSD. An October 2016 VA treatment record notes the Veteran stated that he wanted psychotherapy to work on his isolation, difficulties in crowds and difficulty with loud noises. Current symptoms were noted as depression, insomnia, restless sleep, anxiety, irritability and nightmares. The Veteran was described as alert, fully oriented and well-kempt. DSM-5 diagnoses of PTSD and unspecified depressive disorder were noted. The Veteran endorsed passive thoughts of suicide in April of 2016 that resolved. An October 2017 VA treatment record notes that the Veteran’s PCL-5 score was down, but his PHQ-9 score “remains significant.” The Veteran reported that he continues to feel depressed at times with some irritability and tends to be isolative at times. Continued nightmares, variable insomnia and anxiety were also reported. DSM-5 diagnoses of PTSD and unspecified depressive disorder were noted. The Veteran was afforded a VA mental disorders examination in January 2018. A DSM-5 diagnosis of unspecified depressive disorder was noted. The examiner stated that “[t]here is no objective evidence to link this Veteran's report of symptoms to his prior military service from '88 to '98. Veteran was previously evaluated for PTSD in 1/25/16 and the results of this exam were inconclusive due to evidence of feigning/exaggeration of symptoms.” The Board notes that the examiner’s conclusion regarding the diagnosis and etiology of unspecified depressive disorder is without any rationale, and as such, is inadequate. Further, as the examiner relied entirely on the inadequate January 2016 VA PTSD examination, the Board finds that this examination is based on faulty foundation and, as such, is inadequate. Therefore, the Board finds this VA opinion to be of no probative value. Here, the Board notes that neither the January 2016 or January 2018 VA examiners addressed the November and December 2013 VA treatment records which discussed the Veteran’s conceded stressor and PTSD test results, diagnosis and continuing treatment for PTSD with the same VA psychiatrist. Furthermore, while by itself not dispositive, the Board finds that the unassailed March 2016 private medical opinion only bolsters the ongoing DSM-5 diagnosis of PTSD noted in the VA treatment records since December 2013. Here, the Board finds that the Veteran’s service personnel records confirm the Veteran’s service in Southwest Asia and participation in Operations Desert Shield and Desert Storm. The Veteran first reported in December 2009 that he was a fuel specialist while in Southwest Asia. In November and December 2013, the Veteran reported driving a fuel truck in support of a tank battalion during Desert Storm. Furthermore, while the Veteran’s reporting of dates of his service in Southwest has been inconsistent, the description of the events themselves has been consistent and his service personnel records verify that, at the time of Desert Shield and Desert Storm, he was a petroleum supply specialist. In light of the foregoing, and given the lack of any clear and convincing evidence to contrary, the Board finds that the Veteran’s statements regarding what he experienced and saw during Desert Storm, and the resulting fear it caused him, to be credible. The Board notes that the December 2013 VA treatment records show a diagnosis of PTSD from a VA psychologist and a VA psychiatrist, that are based on the Veteran’s stated fear of hostile military action during his service in Operation Desert Storm. Finally, the Board notes that the December 2013 VA treatment record, as well as subsequent treatment records from the same VA psychiatrist, show the Veteran’s diagnosis of PTSD was made pursuant to DSM-5 and noting that the Veteran’s emotional response to his stressor was intense fear, helplessness and horror. Here, the Board finds that the December 2013 diagnosis of PTSD based on the Veteran’s reported stressor of fearing for his life during Desert Storm made by a VA psychiatrist is tantamount to a finding by a VA psychiatrist or psychologist that the Veteran’s claimed stressor is adequate to support a diagnosis of PTSD. In light of the above, the Board finds that the elements of 38 C.F.R. § 3.304 (f)(3) have been satisfied and that the evidence is at least in equipoise as to whether the Veteran’s PTSD is related to his active duty service. The benefit of the doubt rule is therefore for application. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). REASONS FOR REMAND Entitlement to service connection for neurobehavioral effects resulting in depression, fatigue, poor concentration, memory loss and insomnia, to include as due to an undiagnosed illness and/or due to contaminated water at Camp Lejeune is remanded. The Veteran asserts he is entitled to service connection for neurobehavioral effects resulting in depression, fatigue, poor concentration, memory loss and insomnia, to include as secondary to contaminated water at Camp Lejeune. The Veteran was afforded a VA Gulf War general medical examination in January 2016. The Veteran reported that he is tired all the time, regardless of how much sleep he gets, and has bad headaches that he treats with over-the-counter medication. The examiner stated that the Veteran has no undiagnosed or diagnosable but medically unexplained/partially explained chronic multi-symptom illness of unknown etiology attributable to environmental exposure during deployment in Southwest Asia. The examiner further noted that there is no objective evidence on history or physical examination of chronic fatigue syndrome, fibromyalgia or irritable bowel syndrome, and concluded that the Veteran has no conditions presumptive of Gulf War environmental hazards. The Board notes that once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Here, the VA examiner did not address the specific conditions asserted by the Veteran. As such, this examination is inadequate. The Veteran was afforded a second VA Gulf War general medical examination in January 2018. The examiner concluded that no undiagnosed illness or medically unexplained chronic multi-system illness attributable to environmental exposures during the Veteran’s deployment to Southwest Asia exists. The board notes that this examination was in response to a claim received from the Veteran in September 2017 for right face, chronic pain, fibromyalgia, headaches, morning muscle stiffness, memory problems and sleep disturbances. The Board notes that this does not address the claimed conditions of depression, fatigue, poor concentration, memory loss and insomnia, and as such, is of no probative value. Based on the above, a remand for a new examination is required. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present. 2. After, and only after, completion of step one above, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neurobehavioral effects resulting in depression, fatigue, poor concentration, memory loss and insomnia. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including [insert contention]. The examiner must opine as to whether it at least as likely as not (1) began during active service or (2) was noted during service with continuity of the same symptomatology since service. The examiner must opine as to whether it is at least as likely as not indicative of undiagnosed illness or chronic multi-symptom illness of the type contemplated by 38 U.S.C. 1117 and 38 C.F.R. 3.317. Alternatively, they should specifically indicate whether these symptoms, instead, are attributable to known clinical diagnoses. The examiner must opine as to whether it is at least as likely as not related to contaminants in the water during service at Camp Lejeune. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). 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 it is to find against it. It is not sufficient to base an opinion on a mere lack of documentation of complaints in the service or post-service treatment records. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel