Citation Nr: 1823474	
Decision Date: 04/20/18    Archive Date: 04/26/18

DOCKET NO.  14-04 415	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1.  Entitlement to service connection for post-traumatic stress disorder.

2.  Entitlement to service connection for anxiety.

3.  Entitlement to service connection for depression.

4.  Entitlement to service connection for erectile dysfunction, to include as secondary to anxiety.

5.  Whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches.

6.  Entitlement to service connection for a back disability.

7.  Entitlement to service connection for insomnia, to include as secondary to anxiety.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. P. Keeley, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from July 1968 to March 1970.

These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2012 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a January 2018 travel Board hearing.  A transcript of that hearing has been associated with the claims file.

This is a paperless appeal located on the Veterans Benefits Management System (VBMS), Virtual VA paperless claims processing system, and Caseflow Reader.  The Board has reviewed the electronic records maintained in these systems to ensure consideration of the totality of the evidence.

The issues of entitlement to service connection for depression, erectile dysfunction, a back disability, and insomnia are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A current diagnosis of PTSD is not shown by the competent evidence of record at any during the pendency of this claim.

2.  The evidence is at least in equipoise as to whether the Veteran's anxiety disorder is related to his service.

3.  At the January 2018 Board hearing, the Veteran verbally requested to withdraw his appeal as to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches.


CONCLUSIONS OF LAW

1.  The criteria for service connection for PTSD have not been met or approximated.  38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

2.  Resolving the benefit of the doubt in the Veteran's favor, the criteria for service connection for anxiety are met.  38 U.S.C. § 1110, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2017).

3.  The criteria for a withdrawal of the Veteran's substantive appeal have been met; and as such, the Board does not currently have appellate jurisdiction to decide the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches.  38 U.S.C. §§ 7105 (a), 7108 (2012); 38 C.F.R. §§ 20.200, 20.204 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321 (2017).  

The Veteran has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim.  See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board).

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000).

Service Connection Law

In order to establish service connection for a claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See, Hickson v. West, 12 Vet. App. 247, 253 (1999).

Establishment of service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304 (f) (2017); see also Cohen v. Brown, 10 Vet. App. 128 (1997).  The evidence establishing a PTSD diagnosis must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5).  See 38 C.F.R. § 3.304 (f).

Certain chronic diseases (including psychoses) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time (one year for cardiovascular disease) following discharge from service.  38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309.

A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  38 U.S.C. § 5107 (b) (2012); 38 C.F.R. § 3.102 (2017).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); see, Wise v. Shinseki, 26 Vet. App. 517, 531 (2014).

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).

PTSD Analysis

The Veteran maintains that he is entitled to service connection for PTSD due to his in-service experiences while stationed in Thailand.  Specifically, the Veteran claims that his battalion "hauled all the bombs that were dropped on Vietnam" and that some men died "as a result of the instability of the equipment."  The Veteran then reported that "[they] had secret missions that would take the detonators and make them real bombs, and those things were unstable."  The Veteran stated that he saw people die as a result of these unstable detonators.

Regarding the first Hickson element, a current disability, the competent and probative evidence of record does not reflect that the Veteran has had PTSD at any time furing the appeal.  The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a 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); see also, Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992).

In a September 2011 letter, the Veteran stated that his battalion, the 519th Transportation, transported to US Air Force bases in Thailand.  The Veteran stated that occasionally personnel would be injured or killed due to the instability of the cargo.  The Veteran endorsed nightmares, flashbacks, headaches, sweats, anxiety attacks, stress, erectile dysfunction, shame, melancholy, guilt, sleeplessness, and being easily startled.

In a September 2011 letter, the Veteran's wife stated that while they were travelling in Southeast Asia in 1997 the Veteran began experiencing headaches, insomnia, and panic attacks, which have continued.  

The Veteran was afforded a VA PTSD examination in June 2013.  While the examiner did concede that the Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury, they found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD.  Specifically, the examiner noted that the Veteran displayed no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness.  Furthermore, the examiner described the Veteran's symptoms as "almost subclinical".  The examiner concluded that the Veteran's appropriate diagnosis was anxiety disorder, not otherwise specified.

The Veteran testified at the January 2018 Board hearing that he has "pretty much always had [anxiety attacks]" but then stated that they "became fairly severe when [he] went on a business trip to Southeast Asia in the late 90's".  The Veteran reported that his battalion "hauled all the bombs that were dropped on Vietnam" and that some men died "as a result of the instability of the equipment."  The Veteran then reported that "[they] had secret missions that would take the detonators and make them real bombs, and those things were unstable."  The Veteran stated that he saw people die as a result of these unstable detonators.  The Veteran then reported experiencing dreams that are "directly related to [his] service in Thailand."

The Board has considered the statements made by the Veteran and his wife regarding his symptoms and acknowledges that they are competent to report perceived manifestations of psychiatric symptoms.  However, to the Board notes that they are providing lay evidence pertaining to the diagnosis of his psychiatric disability.  In this regard, the Board recognizes that it is contrary to the law to categorically reject non-expert diagnoses or nexus/causation opinions, based solely on the fact that the person offering the opinion is not an expert.  See, Jandreau; Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Whether non-expert (lay) diagnoses or nexus opinions are competent evidence depends on the on the question at issue and the particular facts of the case. 

In Jandreau, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) stated as follows: "[l]ay 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.  The Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at n.4. 

In this case, neither the Veteran nor his wife are competent to render a diagnosis of PTSD.  Such a diagnosis goes beyond mere observation, and it requires medical training and knowledge.  Neither the Veteran nor his wife have demonstrated having such knowledge.  Therefore, the Board finds that these lay statements to not be competent evidence of a PTSD diagnosis.  Moreover, regardless of their competence, the Board finds the 2013 examiner's opinion as to the appropriate diagnosis to be the most probative evidence on this question, as discussed above.

Here, the Veteran does not meet criteria for a diagnosis of PTSD.  As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine does not apply and the claim must be denied.  38 U.S.C. § 5107; 38 C.F.R. § 3.102.

Anxiety Analysis

With respect to the first Hickson element, there is no dispute that the Veteran has a current diagnosis of anxiety disorder.  As such, the Veteran has satisfied the first Hickson element.

With respect to the second Hickson element, the Veteran testified at the January 2018 Board hearing that his battalion "hauled all the bombs that were dropped on Vietnam" and that some men died "as a result of the instability of the equipment."  The Veteran then reported that "[they] had secret missions that would take the detonators and make them real bombs, and those things were unstable."  The Veteran stated that he saw people die as a result of these unstable detonators.  These events are consistent with the time and nature of his service, and are sufficient to establish that there was an in-service event related to the claimed disability.  As such, the Board finds that the Veteran has satisfied the second Hickson element.

With respect to the third Hickson element, as discussed above, the Veteran has provided statements regarding the Veteran's experiences while in service in Thailand, and both the Veteran and his wife have provided statements regarding symptoms experienced by the Veteran and an event, a post-service trip to Thailand, that triggered the Veteran's symptoms.  The Board again acknowledges that they are competent to report perceived manifestations of psychiatric symptoms.  While not probative as to a specific diagnosis, the  Board finds that the Veteran has been consistent in describing the symptoms and timeline of his anxiety, and that this has been corroborated by further lay testimony from his wife.

As discussed above, the Veteran was afforded a VA PTSD examination in June 2013.  The examiner conceded that the Veteran experienced, witnessed or was confronted with an event that involved actual or threatened death or serious injury.  The examiner noted that the Veteran had been diagnosed with anxiety disorder the prior year and further noted symptoms of depressed mood, anxiety, and chronic sleep impairment, the latter of which is treated with trazadone.  While finding the Veteran's symptoms did not meet the diagnostic criteria for PTSD, the examiner concluded that the Veteran's "anxiety disorder, NOS is more likely than not related to his conceded stressor."  The examiner is competent to draw such an opinion, and as it is supported it with a sound rationale, the Board accords the opinion considerable probative weight.

The Board finds that, in light of the positive nexus opinion from the June 2013 VA examiner and the credible lay statements, the third Hickson element has been satisfied.  As such, the evidence is at least in equipoise as to whether the Veteran's anxiety disorder is related to his military 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).


New and Material Evidence for Headaches

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105.  An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision.  38 C.F.R. § 20.204.  Withdrawal may be made by the appellant or by his or her authorized representative.  38 C.F.R. § 20.204. 

After the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches was certified to the Board on appeal, but before a decision was promulgated, the Board received verbal notice from the Veteran at the January 2018 Travel Board hearing that he requested to withdraw his appeal regarding the aforementioned new and material evidence issue. 

In light of the foregoing, the Veteran has withdrawn this issue for appeal and, hence, there remain no allegations of errors of fact or law for appellate consideration.  Accordingly, the Board does not have jurisdiction to review the appeal as to the issue of whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches, and it is dismissed.


ORDER

Entitlement to service connection for PTSD is denied.

Entitlement to service connection for anxiety is granted.

The appeal for whether new and material evidence has been received to reopen a claim of entitlement to service connection for headaches is dismissed.



REMAND

Depression

The Board notes that the June 2013 VA examiner did not note a diagnosis of depression.  However, a diagnosis of depression was noted in a March 2014 VA treatment record.

In light of the foregoing, the Board is of the opinion that a VA medical opinion should be obtained which addresses whether the Veteran has current depression which is related to his service.  See 38 C.F.R. § 3.159 (c)(4) (2015) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim).

Back Disability

The Veteran maintains that he is entitled to service connection for a back disability.

In a September 2011 letter, the Veteran's wife stated that she married the Veteran in September 1976 and throughout their marriage the Veteran has suffered back pain which persists despite his back surgery in 2007.

In a January 2018 private medical opinion, Dr. R. A. H., an orthopedist, opined that it is at least as likely as not that the Veteran's back disability began in service.  The Board notes the Doctor did not provide a rationale but did provide a history of the Veteran having a lumbar fusion in March 2007 due to massive herniation at L3-4 and degenerative disc disease from L2-S1.  The Board notes that as no rationale was provided, it affords this opinion no probative weight.

As it is unclear whether the Veteran's back disorder is related to the Veteran's service, the Board finds that he should be afforded a VA examination to determine its nature and etiology.  McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006).


Erectile Dysfunction

In Barr v. Nicholson, 21 Vet. App. 303, 311 (2007), the United States Court of Appeals for Veterans Claims found 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.  In Stefl v. Nicholson, 21 Vet. App. 120 (2007), the United States Court of Appeals for Veterans Claims found that, "[w]ithout a medical opinion that clearly addresses the relevant facts and medical science, the Board is left to rely on its own lay opinion, which it is forbidden from doing."  The Secretary has an affirmative duty to gather the evidence necessary to render an informed decision on a claim.  Douglas v. Shinseki, 23 Vet. App. 19 (2009).  Pursuant to 38 C.F.R. § 4.2 (2016), it is incumbent upon the rating board to return an examination report as inadequate if it does not contain sufficient detail.

A June 2013 VA treatment record notes a VA care provider "[r]eviewed with Veteran how depression, anxiety, and marital tension can have an influence on ED along with other medical problems.

The Veteran was afforded a VA male reproductive system examination in June 2013.  Diagnoses of erectile dysfunction and low testosterone were noted.  It was noted that the Veteran's erectile dysfunction was as likely as not attributable to hypogonadism."

Here, the Board notes that the Veteran's contention regarding his psychiatric disorder was not discussed by the examiner.  Furthermore.  As such, the Board finds the June 2013 examination is inadequate and that a remand is required to determine whether the Veteran's now service-connected anxiety disorder is etiologically related to or aggravates the Veteran's erectile dysfunction.

Insomnia

The Board notes that the Veteran has not been provided an examination for his claimed insomnia, to include as secondary to service-connected anxiety.  The June 2013 VA examiner did note, however, that the Veteran had been diagnosed prescribed trazadone for insomnia.    

The Veteran testified at the January 2018 Board hearing that due to his dreams of Thailand he wakes up in a cold sweat and has to "start over with the sleep patterns."  

In light of the foregoing, the Board is of the opinion that a VA medical opinion should be obtained which addresses whether the Veteran has current insomnia which is related to his service or secondary to a service-connected disability.  See 38 C.F.R. § 3.159 (c)(4) (2015) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim).

Accordingly, the case is REMANDED for the following action:

1.  Obtain all outstanding VA treatment records.  All records obtained must be associated with the claims file.

2.  After, and only after, completion of step one above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his claimed back disability.  The examiner must review the Veteran's claims file and elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

After the record review, thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's low back disability had its clinical onset during active service or is otherwise related to any in service disease, event, or injury.

3.  After, and only after, completion of step on above, return the Veteran's claims file to the same examiner who conducted the June 2013 PTSD examination for an additional review of the Veteran's claim for service connection for depression.  If the examiner is not available, obtain an opinion from another appropriate medical professional.  The examiner must review the Veteran's claims file and elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.  

After the record review, thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to the following:

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed depression had its clinical onset during active service or is otherwise related to any in service disease, event, or injury.

4.  After, and only after, completion of steps one and three above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his claimed erectile dysfunction.  The examiner must review the Veteran's claims file and elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

After the record review, thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to the following:

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's erectile dysfunction had its clinical onset during active service or is otherwise related to any in service disease, event, or injury.

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed erectile dysfunction is caused or aggravated by the Veteran's service-connected anxiety disorder.

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed erectile dysfunction is caused or aggravated by the Veteran's depression.

5.  After, and only after, completion of step one above, arrange for the Veteran to undergo a VA examination to determine the nature and etiology of his claimed insomnia.  The examiner must review the Veteran's claims file and elicit a full history from the Veteran.  All necessary tests and studies should be accomplished, and all clinical findings should be reported in detail.

After the record review, thorough examination and interview of the Veteran, the VA examiner should offer an opinion as to the following:

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's insomnia had its clinical onset during active service or is otherwise related to any in service disease, event, or injury.

Whether it is at least as likely as not (i.e., probability of 50 percent or greater) that any diagnosed insomnia is caused or aggravated by the Veteran's service-connected anxiety disorder.

The examiner must address the lay statements from the Veteran, his wife, and fellow soldier regarding his claimed disabilities.

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.

6.  If, after completing the requested actions and all additional development deemed warranted, 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.


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 (2012).




______________________________________________
MICHAEL A. PAPPAS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs