Citation Nr: 1824167 Decision Date: 04/23/18 Archive Date: 05/03/18 DOCKET NO. 14-00 271 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUES 1. Entitlement to service connection for an acquired psychiatric condition, to included posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating for compensation based on individual unemployability (TDIU). WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. Foster, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to February 1968. This matter comes before the Board of Veterans' Appeals (Board or BVA) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Hartford, Connecticut Regional Office (RO). Jurisdiction has since been transferred to the RO in Togus, Maine. The Veteran provided testimony under oath to the undersigned Veterans Law Judge in a February 2018 video conference hearing. At the hearing, the Veteran indicated that he wished to revoke representation by the Disabled American Veterans (DAV). The Veteran proceeded unrepresented at the hearing. A transcript of the hearing is of record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT Resolving reasonable doubt in the Veteran's favor, his PTSD is a result of events he experienced in service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and to Assist The Veteran's claim for entitlement to service connection for PTSD is being granted herein. As such, the Board finds that any error related to the VCAA with regard to this claim is moot. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159; Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Legal Criteria and Analysis Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirements for establishing service connection for PTSD are more specific than those for establishing service connection for other psychiatric disabilities. To establish service connection for PTSD, the evidence must satisfy three basic elements: (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or-symptoms of disability subject to lay observation. 38 U.S.C. § 1153(a); 38 C.FR 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In the present case, the Veteran has a present diagnosis of PTSD. See VA examination, July 2016. The Veteran alleges, inter alia, that his PTSD was caused by fear experienced when exposed to extreme cold temperatures while serving in Rome, New York. Specifically, he states that he was left outside in sub-zero temperatures for much longer than he was supposed to be and he was "sure" that he was going to die. See PTSD Evaluation by Dr. M.C. He stated that he was not given breaks in the warm truck like his fellow airmen. See December 2013 statement. In support of this claimed stressor, the Veteran has submitted information showing temperature and weather reports for Rome, New York, from the period when he was in service there. According to information provided by the Veteran, in January 1965, the temperature dropped to negative 18 degrees Fahrenheit, with periods of sub-zero temperatures, or just above zero, into April. The Veteran's military records reflect service in Rome, New York, specifically, at Griffiss Air Force Base, beginning in December 1964, after which he was stationed in Alaska beginning in February 1967. The Board concedes that such service is consistent with claims of exposure to extreme cold. In addition, it appears from medical opinions submitted by the Veteran's physicians that he has been consistently describing these events for many years. Given the totality of this evidence, as well as providing benefit of the doubt to the Veteran, the Board finds that the evidence submitted is sufficient to corroborate the Veteran's claimed stressor. The Board acknowledges that the Veteran has made a number of claims regarding other in-service stressors, which have not been verified. However, because the Board finds the supporting evidence of cold exposure sufficient to concede this particular stressor, it will not address the remaining stressors proffered by the Veteran. In addition, the Veteran has provided medical evidence supporting a link between his current symptoms of PTSD and the in-service stressor. An August 2010 letter from Dr. D.G.F., states that he has treated the Veteran for the last 15 years and that he is concerned that he is suffering from PTSD relating to his military experience in the southern U.S. and in Rome, New York in the early 1960s, including that when on assignment in Rome, he was left in the frigid cold unjustly, as punishment for his relationship choices. This was reiterated by the same treating physician in February 2014 correspondence in which he wrote that he has served as the Veteran's primary care physician for 22 years and the Veteran has a diagnosis of PTSD, along with other medical ailments. A September 2015, opinion from Dr. M.C. states that she has been treating the Veteran off and on since December 2012 and that she believes she knows him fairly well. She conveyed the Veteran's claim of serving in Rome, New York in extreme cold, and not being relieved by fellow service men; he was left in the cold repeatedly and feared for his life because of the wind chills. She stated that the Veteran's identified traumatic incident in service meets the criteria for the traumatic episode description listed in the DSM-5. A July 2016 VA examination reiterated that the Veteran's stressor of being forced to stay out in the cold temperatures causing fear for his life met Criterion A and is adequate to support a diagnosis of PTSD. The examiner opined that from the information gathered and reviewed it appears at least as likely as not (50 percent probability or greater) that the Veteran's diagnosed PTSD is proximately due to the stressor. The Board acknowledges the August 2010 medical opinion of Dr. H.G.B., which states that the Veteran was formally assessed by mental health professionals in the PTSD firm in 2003, and that during the assessments he reported some symptoms of PTSD based on experiences in the service while stationed in Mississippi and New York, however, the Veteran has not fulfilled the criteria for PTSD. The Board also acknowledges the VA examination from September 2015, which declined to find a diagnosis of PTSD. The Board finds these opinions to be inadequate. Numerous opinions and treatment records reflect a diagnosis of PTSD. In addition, neither discusses the stressor of the Veteran being left in the cold and fearing for his life. As the Veteran has satisfied the criteria for service connection for PTSD, his claim is granted. ORDER Entitlement to service connection for PTSD is granted. REMAND The Board finds that additional development is needed prior to adjudicating the Veteran's claim for a TDIU. The Board finds that the Veteran's claim for a TDIU is inextricably intertwined with his PTSD claim. Therefore, after the RO has rated the newly service-connected PTSD, the Board asks that the RO readjudicate the Veteran's claim for a TDIU, conducting any further development deemed necessary. Accordingly, the appeal is REMANDED for the following action: After rating the issue of PTSD, conduct any further development required for the Veteran's claim for a TDIU, and then readjudicate the Veteran's claim for a TDIU. If upon completion of the above action the issue is denied, the case should be returned to the Board after compliance with appellate procedures. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded expeditious treatment. The law requires that all issues 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). ______________________________________________ E. I. VELEZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs