Citation Nr: 21002315 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-36 190 DATE: January 13, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder (GAD), is granted. REMANDED Entitlement to service connection for a respiratory condition, to include bronchitis and pneumonia, including as due to undiagnosed illness, is remanded. Entitlement to service connection for a hernia is remanded. FINDINGS OF FACT 1. The Veteran served in the Southwest Asia theater of operations during the Persian Gulf War. 2. PTSD and GAD are at least as likely as not related to service. CONCLUSION OF LAW The criteria for service connection for PTSD and GAD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty for training from June 2008 to November 2008, and active service from October 2009 to September 2010, with additional reserve service. This case comes to the Board of Veterans’ Appeals (Board) on appeal from Agency of Original Jurisdiction (AOJ) decisions dated in June 2013 and September 2014. The Veteran testified before the undersigned Acting Veterans Law Judge at a February 2020 hearing; a transcript of the hearing is of record. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for a disability diagnosed after service when the evidence establishes that the disability was incurred in service. See 38 C.F.R. § 3.303 (d). 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and GAD The Veteran contends that he has a current psychiatric disorder, to include PTSD and generalized anxiety disorder (GAD), due to traumatic events during service in Iraq. In his November 2014 notice of disagreement, he asserted that GAD is due to his military experiences in Iraq, and said he was afraid for his life from hostile enemy actions. In July 2016, he asserted that his anxiety was due to watching over detainees in Iraq. In an October 2016 statement, he reported the following stressor in service: being physically attacked by a violent detainee at Camp Cropper, in Iraq, in June 2010. He was punched once behind his neck area, and then fell to the ground. He thought he was going to die, but was rescued by the IRF (immediate reaction force), led by Sergeant L. At the February 2020 Board hearing, he testified that during service in Iraq he guarded a prison, and the prisoners threatened him, which triggered his anxiety, and he had anxiety symptoms ever since. The evidence shows that the Veteran has been diagnosed with more than one psychiatric disorder. His claim therefore encompasses all of these diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that reasonably may be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). VA outpatient treatment records and the February 2014 VA mental disorders examination show that the Veteran has been diagnosed with generalized anxiety disorder. On VA PTSD examination in November 2016, the examiner diagnosed PTSD, and indicated that the Veteran did not have more than one diagnosed mental disorder. As the Veteran has been diagnosed with PTSD and generalized anxiety disorder, the question for the Board is whether these disorders began during service or are at least as likely as not related to an in-service injury, event, or disease. For the reasons discussed below, the Board concludes that the Veteran has a current disability that began during active service. 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). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a); 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether the Veteran was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran’s service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154 (b); 38 C.F.R. § 3.304 (f). A veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor if: (1) the claimed stressor is related to his fear of hostile military or terrorist activity; (2) the claimed stressor is consistent with the places, types, and circumstances of the veteran’s service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). The Veteran’s service personnel records show that he served in Kuwait/Iraq from December 4, 2009 to July 24, 2010. His primary military occupational specialty (MOS) was carpentry/masonry specialist. His duty during this period was noted to be in an imminent danger pay area. He received the Iraq Campaign Medal with campaign star, among other awards. The evidence against the claim of service connection for a psychiatric disorder includes the fact that service treatment records are negative for complaints, treatment or diagnosis of a psychiatric disorder in service, and in a July 2010 report of medical assessment, the Veteran did not report any psychiatric symptoms. Post-service medical records are negative for complaints or diagnosis of a psychiatric disorder until December 2012. VA outpatient treatment records reflect that multiple screenings for PTSD were negative. The evidence in favor of the claim of service connection for a psychiatric disorder includes a December 2012 VA mental health note which reflects that the Veteran complained of difficulty concentrating and worrying about little things, and said these symptoms had been present since he returned from Iraq about two years ago. He reported a history of traumatic events, including being on guard with detainees, and symptoms including irritability, difficulty concentrating, and hypervigilance. The diagnoses were anxiety disorder and GAD. The February 2014 VA examiner diagnosed GAD but did not provide a medical opinion as to the etiology of this disorder. The November 2016 VA examiner diagnosed PTSD, based on the Veteran's reported stressor of being attacked by a detainee from behind. The examiner opined that this stressor is adequate to support a diagnosis of PTSD, and it is related to the Veteran's fear of hostile military or terrorist activity. The Board finds that the Veteran's claimed stressor is consistent with the places, types, and circumstances of his service. In light of the probative November 2016 VA medical opinion, based upon a conceded in-service stressor, and the Veteran’s lay statements which are consistent with the circumstances of his military service, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s current PTSD and GAD are related to a stressor in service, and Board concludes that the Veteran has current PTSD and GAD that are related to traumatic events in service. 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). Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PTSD and GAD is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for a respiratory condition, to include bronchitis and pneumonia, is remanded. The Veteran contends that his current respiratory conditions, to include breathing problems, bronchitis, and pneumonia began in 2009, and he was treated for this condition during service in Iraq. See his July 2011 claim. He asserts that during his deployment in Iraq, he worked near a burn pit, had bronchitis and pneumonia, and was ill for a month and on bed rest. See his June 2012 statement and the February 2020 Board hearing transcript. In June 2012 he stated that he had bronchitis episodes every two weeks. At his February 2020 Board hearing, the Veteran testified that after returning from Iraq, he had bronchitis every month for two years, but after that the episodes became less frequent, and they currently occur about three times per year, and he treated himself for the episodes, including using a steam room. Alternatively, he contends that his respiratory symptoms are due to undiagnosed illness based on his service in the Southwest Asia theater of operations. Service treatment records reflect that the Veteran was treated for pneumonia in May 2010, during service in Iraq. Although the Veteran underwent a VA examination in December 2011, the Board finds that this examination is inadequate. The examiner indicated that for the claimed conditions of bronchitis, pneumonia, and pulmonary difficulties, there was no diagnosis because there was no pathology to render a diagnosis. However, VA and private outpatient treatment records dated from 2010 to 2012 reflect treatment for upper respiratory infections and bronchitis. Moreover, the examiner did not provide an opinion regarding whether the Veteran has current respiratory symptoms due to undiagnosed illness. Remand is required for another medical examination. The Veteran had active service in Kuwait/Iraq from December 4, 2009 to July 24, 2010. Therefore, he is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). The Veteran reports experiencing cough, hemoptysis, orthopnea and shortness of breath. See December 2011 VA examination. On remand, the Veteran should be scheduled for an examination to determine the nature and etiology of his condition. The AOJ should obtain updated relevant VA and private medical records and associate them with the claims file. 2. Entitlement to service connection for a hernia The Veteran contends that he incurred a hernia in 2009, during service. See his July 2011 claim. In a June 2012 statement, he contended that his hernia was due to lifting heavy objects in Iraq. Alternatively, he contends that his hernia was due to coughing from pneumonia during service in Iraq. See February 2020 Board hearing transcript. In light of the Veteran's recent contention that he incurred a hernia secondary to coughing from a respiratory disorder, this issue is inextricably intertwined with the claim of service connection for a respiratory disorder. The Board finds that remand is required for a supplemental medical opinion as the December 2011 VA examination was inadequate. The examiner did not provide a medical opinion as to the etiology of the left inguinal hernia and stated that there was no diagnosis for the claimed hernia condition because it had resolved. However, the Veteran was diagnosed with this condition during the pendency of the appeal. VA treatment records show that the Veteran was diagnosed with a hernia in May 2011 and had left inguinal hernia repair in September 2011 at a VA facility, with subsequent scar revision in February 2013. The AOJ should obtain updated relevant VA and private medical records and associate them with the claims file. The matters are REMANDED for the following action: 1. Obtain updated relevant medical records of treatment or evaluation of a respiratory/lung disorder and a hernia condition, to include a surgical scar. 2. Schedule the Veteran for an appropriate examination to determine the nature and etiology of his claimed respiratory disorders, to include bronchitis and pneumonia. The examiner must review the entire claims file, including a copy of this remand. The examiner should conduct all appropriate diagnostic testing. The examiner should then record all noted signs and reported symptoms, document all clinical findings, and provide a diagnosis if possible. The examiner is asked to provide responses to the following: A) Identify the Veteran’s objective indications of a disability. “Objective indications” of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran’s appearance, physical abilities, and mental or emotional attitude. 60 Fed. Reg. 6661, 6663 (Feb. 3, 1995). B) By history, physical examination, or laboratory testing, can the Veteran’s objective indications of a disability be attributed to a known clinical diagnosis? If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate. There is no requirement that the examiner provide a diagnosis of undiagnosed illness. C) If the Veteran’s objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness is not incurred during active service during the Persian Gulf War or that it was caused by a supervening condition or event that occurred since the Veteran’s departure from service during the Persian Gulf War? The examiner should note that a positive response to this question requires affirmative evidence. The mere absence of evidence is not sufficient. D) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the etiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the etiology of the disease or disability population as a whole. E) If the Veteran’s objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of the Veteran’s condition (1) inconclusive, (2) partially understood, or (3) fully understood? This determination as to each must be based on the Veteran’s specific case and cannot be based on the pathophysiology of the disease or disability population as a whole. F) If both the etiology and pathophysiology are partially understood or fully understood, then is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s diagnosed condition was incurred in, or is otherwise related to, his active service, including diagnosed pneumonia in May 2010? A complete rationale must be provided for all opinions expressed. 3. Schedule the Veteran for a VA examination for his hernia condition, to include residuals of left inguinal hernia repair. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is the left inguinal hernia condition at least as likely as not related to service, including lifting heavy objects and/or coughing from pneumonia diagnosed in May 2010? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his/her in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his/her current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? If, and only if, service connection is established for a respiratory disorder, is the hernia condition at least as likely as not proximately due to service-connected disability? (Continued on the next page)   If, and only if, service connection is established for a respiratory disorder, is the hernia condition at least as likely as not aggravated, i.e., worsened beyond its natural progression, by service-connected disability? Sarah B. Richmond Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.