Citation Nr: 1801065	
Decision Date: 01/09/18    Archive Date: 01/19/18

DOCKET NO.  14-10 718A	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for an acquired psychiatric disorder other than PTSD.


REPRESENTATION

Appellant represented by:	Ralph J. Bratch, Attorney at Law


ATTORNEY FOR THE BOARD

Bonnie Yoon, Counsel




INTRODUCTION

The Veteran served on active duty from June 1965 to June 1967.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that the RO had characterized the Veteran's claim as only a claim for service connection for PTSD; however, as the scope of the Veteran's claim of service connection for PTSD may encompass other psychiatric disorders reasonably raised by the record, the Board has recharacterized the issue on appeal as that reflected on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009).

In a May 2015 correspondence, the Veteran requested a videoconference hearing before a Veterans Law Judge.  However, in May 2017, the Veteran withdrew his request for a hearing.  Thus, the hearing request is deemed to be withdrawn.  38 C.F.R. § 20.704(d).

The issue of service connection for an acquired psychiatric disorder other than PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is at least in equipoise as whether the Veteran has PTSD that is related to in-service combat stressors.


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the Veteran in proceeding with adjudication of the claim for service connection for PTSD given the favorable nature of the Board's decision.

Legal Criteria and Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 

In order to establish service connection on a direct basis, the record must contain: (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.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the 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), 4.125(a).  If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of 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, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor.  38 C.F.R. § 3.304(f)(2).   The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  Nothing in the language or history of that statute or any VA regulation suggests a more specific definition.  The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 38 U.S.C. § 1154(b) must be resolved on a case by case basis.  VAOPGCPREC 12-99.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Regarding stressors, the Veteran has reported combat related experiences including encountering enemy fire and watching people die in Vietnam in 1965 and 1966.  The Veteran also witnessed fellow service people attempt suicide and commit suicide.  The Veteran's Form DD-214 notes that the Veteran was awarded the Vietnam Service Medal with two Bronze Stars.  His service personnel records indicate that he received the Bronze Stars for service in the Vietnam Defense Campaign and a campaign that began on December 25, 1965.  Also, the Veteran's service personnel records reflect that the Veteran served on the USS Hissem from November 1965 to April 1967 and that the ship served in waters adjacent to Vietnam, which was an area designated as a combat zone during periods when the Veteran was aboard.  Additionally, these records reflect that the ship was eligible for hostile fire pay from September to December 1965 and during periods in 1966.  In examining this evidence, the Board resolves any reasonable doubt in the Veteran's favor and find that he engaged in combat with the enemy during his service aboard the USS Hissem.  Accordingly, the Veteran's accounts of in-service stressor events during combat are presumed credible and consistent with the types and circumstances of his service, and are conceded.  Id. 

VA psychiatry treatment records from September 2010 and December 2010 include an Axis I diagnosis of PTSD, combat-related, chronic rendered by a VA psychiatrist.  In February 2011, the Veteran was diagnosed with chronic PTSD and major depressive disorder.  

The Veteran underwent a VA examination in December 2010.  While the examiner found that the Veteran's combat-related stressors met the DSM-IV stressor criterion, the examiner found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD.  The Veteran was not diagnosed with any other psychiatric disorders.  The examiner indicated that the examination yielded "unreliable/inconsistent results based on a structured and interview assessment used to detect malingering."

The Veteran underwent another VA examination in January 2014, where the examiner found that the Veteran's stressor of being exposed to suicide and attempted suicide in service was adequate to support a diagnosis of PTSD, but that the Veteran did not have a diagnosis of PTSD which conformed to the DSM-5 criteria.  The examiner indicated that testing results raised the suspicion of malingering.  However, the examiner's rationale is somewhat contradictory, because despite acknowledging that the Veteran's combat stressors were conceded, the examiner stated that she was unable to "verify alleged military stressors."  The Veteran was diagnosed with unspecified anxiety disorder and alcohol use disorder, moderate, which the examiner stated was not related to his conceded military combat experiences.  

The Veteran submitted an August 2015 Disability Benefits Questionnaire (DBQ) from Dr. S.F., Psy.D., who diagnosed the Veteran with PTSD.  Stressors noted include combat experiences of killing Vietnamese fisherman families who were caught up in the midst of fire fights, being fired upon while on the Saigon River, and being on the USS Hissem on Christmas day in 1966 when the Chinese threatened to blow the ship out of the water.  Dr. S.F. also included a comprehensive psychological evaluation along with the DBQ.  Dr. S.F. concluded that the Veteran's PTSD was more likely than not due to his combat service.  The Veteran was in Vietnam and was involved in intense combat operations, experienced multiple losses, experienced life-threatening situations to include enemy ground fire, threats from the Chinese, and crossfire, killing civilian fisherman and their families.  Dr. S.F. also stated that the Veteran exhibited the classic PTSD symptoms related to combat service.  That rationale, coupled with a full reading of Dr. S.F's report, is probative as to whether PTSD is related to the Veteran's combat-related service.  See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996) (Board charged with assessing the probative value of all evidence of record).

Based on the above, the Board finds that the evidence is in at the very least equipoise as to whether the Veteran has PTSD that is related to his in-service combat experiences.  While the December 2010 and January 2014 VA examiners did not diagnose the Veteran with PTSD; the Veteran's VA treating psychiatrist diagnosed the Veteran with combat related PTSD in September and December 2010, and Dr. S.F. also diagnosed the Veteran with PTSD and indicated that it was most likely due to his experiences from his combat service in Vietnam, providing a link between current symptoms and an in-service stressor.  Dr. S.F. also offered a rationale to support the opinion provided.  

As such, in light of the foregoing and resolving all reasonable doubt in the Veteran's favor, service connection for PTSD is warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  


ORDER

Service connection for PTSD is granted.




REMAND

With regard to the claim for service connection for a psychiatric disorder other than PTSD, the Board notes that the Veteran was diagnosed with unspecified anxiety disorder and alcohol use disorder, moderate by the January 2014 VA examiner.  The examiner stated that the diagnoses were not related to his conceded military combat experiences, but provided no rationale.  The fact that the examiner offered no rationale for the opinion renders the examination inadequate.  

The Board recognizes that service connection for PTSD was granted above.  However, it is possible to separately grant service connection for both PTSD and another psychiatric disorder.  See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("We recognize that bipolar disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for VA to treat these separately diagnosed conditions as producing only the same disability").  Given such, remand is necessary to obtain an addendum medical opinion.  See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (once VA provides an examination to a Veteran, VA has a duty to ensure that the examination is adequate for evaluation purposes).  

Regarding the diagnosis of alcohol use disorder, although service connection may not be granted for substance abuse on the basis of in-service incurrence or aggravation, secondary service connection is available for substance abuse if such abuse is found to be secondary to a service-connected disability.  38 U.S.C. §§ 105, 1110; 38 C.F.R. § 3.301(a); VAOPGCPREC 2-98.

Additionally, any updated VA treatment records should be obtained and associated with the claims file on remand.

Accordingly, the case is REMANDED for the following actions:

1.  Obtain the Veteran's VA treatment records from February 2011 to the present.

2.  After completing the development requested in item 1, return the Veteran's claims file to the VA examiner that conducted the January 2014 VA PTSD examination for an addendum medical opinion.  The Veteran should only be scheduled for another examination if it is deemed necessary by the VA examiner.

The examiner is asked to provide a detailed rationale for the opinion that it was less likely than not that the Veteran's diagnosis of unspecified anxiety is not related to his conceded military combat experience.  Additionally, the examiner is asked to respond to the following question:

For diagnosed alcohol use disorder, provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disorder was proximately due to, caused by, or aggravated by (i.e., any increase in the severity of the condition beyond its natural progress) service-connected PTSD? 

If the VA examiner who provided the January 2014 opinion is not available, then forward the Veteran's claims file to another appropriate specialist to obtain a medical opinion regarding the Veteran's claim for service connection for an acquired psychiatric disorder other than PTSD.  The complete claims file and a copy of this remand must be made available to the reviewing clinician.  The Veteran should only be scheduled for another examination if it is deemed necessary by the clinician providing the opinion.

The reviewing clinician is asked to identify all current psychiatric disorders other than PTSD, including unspecified anxiety disorder and alcohol use disorder.  The reviewing clinician is then asked to provide an opinion on the following questions:

i)  As to each diagnosed psychiatric disorder other than alcohol use disorder, is it at least as likely as not (i.e., at least a 50 percent probability) that the diagnosed psychiatric disorder other than PTSD is related to the Veteran's military service, to include his conceded combat experiences?

ii)  For diagnosed alcohol use disorder, is it at least as likely as not (50 percent probability or greater) that the disorder was proximately due to, caused by, or aggravated by (i.e., any increase in the severity of the condition beyond its natural progress) service-connected PTSD? 

A rationale must be provided for all opinions and conclusions rendered.  The opinions should address the particulars of this Veteran's medical history, his lay statements, any witness statements, and the relevant medical principles as applicable to this claim.  If the reviewing clinician cannot provide any requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.

3.  After undertaking any other development deemed appropriate, readjudicate the issue on appeal.  If the benefit sought is not granted, the Veteran and his attorney should be provided with a supplemental statement of the case and afforded an opportunity to respond.  Then return the case to the Board for further review if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
M. SORISIO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs