Citation Nr: 21066915 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-11 238 DATE: November 2, 2021 ORDER Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, is granted. Service connection for vertigo, to include a secondary to bilateral hearing loss, is denied. REMANDED Service connection for hypertension is remanded. Service connection for residuals of stroke is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, his acquired psychiatric disability, to include posttraumatic stress disorder, is at least as likely as not related to his in-service personal assault. 2. The evidence of record weighs against finding that the Veteran has had vertigo at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f), 4.125(a). 2. The criteria for service connection for vertigo, to include as secondary to service-connected bilateral hearing loss, are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1970 until his honorable discharge in November 1973. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 decision by the Nashville, Tennessee, Regional Office of the United States Department of Veterans Affairs (VA), which denied service connection for vertigo; a March 2016 decision by the Augusta, Maine, VA Regional Office, which denied service connection for posttraumatic stress disorder (PTSD); and a July 2016 decision by a VA Regional Office, which denied service connection for hypertension and residuals of a stroke. In August 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Additional legal theories of service connection will be discussed in the following analysis where appropriate. Analysis 1. Service connection for an acquired psychiatric disability, to include posttraumatic stress disorder, is granted. Service connection for PTSD is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor. First element: A current disability under the DSM-5 In the context of service connection for an acquired psychiatric disability, to include PTSD, the "current disability" requirement must be proven with evidence diagnosing the condition in accordance with the DSM-5. See 38 C.F.R. §§ 3.304(f), 4.125(a). "[A] clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor" because "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Veteran submitted a private mental health evaluation from Dr. E.H. dated April 9, 2015. Dr. E.H. diagnosed the Veteran with PTSD and chronic major depression. Dr. E.H. did not indicate the version of the DSM he used to evaluate the Veteran, but the Board reasonably concludes it was the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), due the inclusion of a "GAF" score. Relevant to this case, for all appeals certified to the Board after August 4, 2014, which include the Veteran's instant appeal, VA moved from using the DSM-IV to using the DSM-5. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). A key difference between the DSM-IV and the DSM-5 is that the newer edition no longer employs Global Assessment Functioning (GAF) scores to assess the effect of a mental disorder on a person suffering from such a condition. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). GAF scores are no longer considered an acceptable metric. See id. The Board finds no error in the doctor's use of the DSM-IV to assess whether the Veteran has a diagnosable mental health condition as the diagnosis is not solely dependent on the GAF score. Therefore, the Board concludes the first element is satisfied. Second element: An in-service stressor If a claimant is not a combat veteran, his or her claimed in-service stressor must be corroborated by credible supporting evidence. Id. at 142. A veteran's lay testimony alone generally is insufficient proof of a noncombat stressor, see Sizemore v. Principi, 18 Vet. App. 264, 270 (2004); Moreau v. Brown, 9 Vet. App. 389, 396 (1996), unless he falls under certain exceptions, see 38 C.F.R. § 3.304(f)(1)-(4) (2013) (allowing the veteran's testimony alone to establish in-service PTSD stressors when the veteran's PTSD is diagnosed during service, the veteran engaged in combat with the enemy, the veteran's stressor is related to hostile military or terrorist activity, or the veteran was a prisoner of war). Evidence of changes in behavior may corroborate the occurrence of a stressor only when the PTSD claim is based on an in-service personal assault. 38 C.F.R. § 3.304(f)(5). During his August 2021 Board hearing, the Veteran testified that he was stabbed in his back by his commanding sergeant. August 2021 Board Hearing Transcript, at 8. This is the in-service stressor he cites as a basis for his claim for service connection for PTSD. As this stressor does not involve any of the listed exceptions found in 38 C.F.R. § 3.304(f), the stressor must be supported by corroborating evidence. A lay statement from someone other than the claimant may provide the necessary "credible supporting evidence." See YR v. West, 11 Vet. App. 393, 39799 (1998) (in PTSD case, "credible supporting evidence" is not limited to service department records, rather it can be from any source; holding that Board's failure to discuss appellant's sister's written statement was prejudicial error); see also 38 U.S.C. § 5107(b) (requiring "all information and lay . . . evidence" be "considered"). The Veteran's military personnel records confirm service in Germany between 1971 and 1973. The Veteran submitted a lay statement from a fellow military member, R.K. In a correspondence dated August 24, 2015, R.K. stated that she served with the Veteran in Germany, where the attack occurred, from 1971 to 1974. She cited personal knowledge of the staff sergeant cutting the Veteran with a knife. She submitted a second correspondence dated March 11, 2016, in which she stated that the Veteran had been dating the staff sergeant's daughter (identifying the staff sergeant by his name). This led to the staff sergeant attacking the veteran with a knife. She said the event occurred in March, April, or May of 1973. She stated the Veteran was taken to a hospital where he received staples to close his wound. She also identified the specific location of the attack in Germany. The Board finds R.K.'s statements credible and probative. She has described with sufficient detail the facts surrounding the Veteran's stabbing such that the Board finds her statements corroborate the Veteran's account. Therefore, the second element is satisfied. Third element: A causal link The Veteran's private mental health doctor, E.H., provided medical evaluation discussing the Veteran's mental health diagnosis, in-service stressors, PTSD symptoms, general military and medical history, and a treatment plan. This evaluation, however, did not cite a specific medical opinion as to whether the Veteran's PTSD was linked to his cited in-service stressor. Normally, in such an instance, the Board would deny service connection based on a lack of an explicit opinion. But, in this case, the Board finds an exception. Bearing in mind that the Board should read veterans' claims sympathetically, Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004), and provide veterans the benefit of the doubt where necessary, 38 U.S.C. § 5107(b), the Board concludes that, when Dr. E.H.'s mental health evaluation of the Veteran is read as a whole, and in light of all evidence of record, it contains sufficient information linking the Veteran's PTSD with his cited in-service stressor. First, Dr. E.H. specifically cited the Veteran's report of being stabbed by his sergeant as a consideration when assessing the Veteran's mental health condition. Second, Dr. E.H. discussed the Veteran's symptoms stemming from his in-service stressor. Third, Dr. E.H. cited no other potential cause of the Veteran's current PTSD symptoms, nor has the Board found any such potential causes within the record. Overall, the Board can only reasonably conclude that Dr. E.H.'s mental health evaluation of the Veteran implicitly linked the Veteran's PTSD with his cited in-service stressor. The Board finds no evidence in the record demonstrating the contrary. Therefore, affording the Veteran the benefit of reasonable doubt, the Board concludes the third element is satisfied. Accordingly, as each element is satisfied, service connection for an acquired psychiatric disability, to include PTSD, is warranted. 2. Service connection for vertigo, to include a secondary to bilateral hearing loss, is denied. For all claims of service connection, regardless of the legal theory on which they are based, a veteran must have a current disability. The requirement for a veteran to have a "current disability" is satisfied when he or she has a disability (1) at the time a claim for VA disability compensation is filed or (2) has a disability during the pendency of that claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). For the reasons that follow, the Board finds that the Veteran does not have a currently disability of vertigo for which service connection may be granted. At his August 2021 Board hearing, the Veteran testified that he believed his claimed vertigo began about four to five years ago. August 2021 Board Hearing Transcript, at 16. He testified his private doctor, Dr. N.J., diagnosed him with vertigo and related it to his hearing loss. Id. at 1718. The Board has located multiple medical records that are relevant to this issue. First, a June 2013 medical record from a private physician, Dr. C., indicated that the Veteran had been referred to him from another physician, Dr. B., for "dizziness." The Veteran indicated his dizziness started five years ago (approximately 2008). Dr. C. reviewed the Veteran's family history, medical history, and spoke with him about his symptoms. He also conducted "a complete review of systems." Following a medical evaluation and audiologic examination, Dr. C. opined that the Veteran's imbalance and dizziness were "much more likely related to his stroke and/or his hypertension." He explicitly opined that "[h]e does not have vertigo." The Board finds Dr. C.'s examination and opinion very credible and highly probative as each are based on accurate facts and medical data. The Veteran's private treatment records from Dr. N.J. are associated with his claims file. In a September 2013 medical record, Dr. N.J. recorded that the Veteran reported feeling "more dizzy" when his blood pressure was below 110. In the "assessment" portion of the record, Dr. N.J. wrote, "vertigo of central origin." But he also wrote, "ongoing vertigo-like symptoms from brain stem chronic infarcts." (Emphasis added). The Board finds that Dr. N.J.'s diagnosis of "vertigo of central origin" has no probative value. There is no evidence within the medical records that Dr. N.J. evaluated the Veteran for vertigo, rather he came to a conclusion based on symptoms the Veteran reported. He offered no medical basis for his diagnosis of vertigo. Moreover, Dr. N.J. provided an equivocal diagnosis. While he recorded an assessment of "vertigo of central origin" he also indicated the Veteran had only "vertigo-like symptoms," which indicates to the Board that the Veteran may not actually have had vertigo but only symptoms that were similar to vertigo. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (holding that medical opinions are speculative and of little or no probative value when a physician makes equivocal findings). Therefore, the Board affords Dr. N.J.'s diagnosis of vertigo no probative value, and the Board doubts the credibility of the diagnosis in light of other evidence discussed herein. Dr. N.J. referred the Veteran to Dr. R.B. (the Board believes this is the Dr. B. referenced by the Veteran during his Board testimony). In November 2014, Dr. R.B. conducted an "[Ultrasound] Carotid Evaluation Doppler Bilateral" on the Veteran in association with his asserted dizziness. "Carotid ultrasound uses sound waves to produce pictures of the carotid arteries in the neck which carry blood from the heart to the brain. A Doppler ultrasound studya technique that evaluates blood flow through a blood vesselis usually part of this exam. It's most frequently used to screen patients for blockage or narrowing of the carotid arteries, a condition called stenosis which may increase the risk of stroke." Ultrasound-Carotid, https://www.radiologyinfo.org/en/info/us-carotid (last accessed Oct. 20, 2021). Dr. R.B. found "no significant flow-restrictive stenosis in either carotid bifurcations." Dr. R.B. did not diagnose him with vertigo. The VA Regional Office afforded the Veteran a VA-contracted examination to assess his claim of vertigo in March 2015. The examiner recorded that the Veteran reported an onset of symptoms, including dizziness, four years ago. The examiner documented that the Veteran took medication for his dizziness. The Veteran's physical examination revealed normal external ears, ear canals, tympanic membranes, gait, Romberg test, and limb coordination. The Veteran received an audiogram during the examination. The examiner found no significant test results associated with his asserted vertigo. After considering the Veteran's military history, medical history, including his current bilateral hearing loss, physical evaluation, and lay statements, the examiner opined that the Veteran did not have a diagnosis of vertigo. Instead, the examiner opined that the Veteran's dizziness was probably due to his stroke that he experienced in 2007. The Board finds the VA-contracted examiner's opinion and medical findings highly credible and probative as they are based on accurate facts and a detailed examination. Finally, a July 2016 VA Audiology Consult Note documented that the Veteran was referred by his neurologist for vestibular testing with complaints of constant vertigo. A VA audiologist performed a videonystagmography to assess the integrity of the right and left peripheral vestibular systems individually and the function of the ocular-motor system. Based on the test results, the audiologist opined that benign positional paroxysmal vertigo was not evident. The Board finds this VA audiologist's opinion highly credible and probative. Her opinion was based on a detailed examination of the Veteran, test results, and accurate facts. Based on all the relevant evidence of record, the Board finds that the Veteran did not have vertigo during the claim period; thus, he does not have a currently disability for VA disability purposes. The credible and probative evidence of record indicates no such diagnosis. Instead, the evidence indicates that the Veteran's dizziness is a symptom potentially associated with his stroke and/or hypertension, individually or collectively, and is not a separate and distinct disability for which service connection may be granted. In the interest of completeness, the Board addresses a potential issue of prejudice related to its decision denying service connection for vertigo. See generally Bernard v. Brown, 4 Vet. App. 382, 39293 (1993) (the Board should address potential issues of prejudice). The Board recognizes that it has denied the Veteran's claim for service connection for vertigo before being reasonably assured that VA has made reasonable attempts to obtain all of his in-service medical records, as discussed below. The lack of any potential in-service medical records, however, is not prejudicial to the Veteran on this claim. The Board has denied the Veteran's claim because he does not have a current disability. Regardless of what any potential outstanding in-service treatment records may reveal, they cannot establish that the Veteran currently has vertigo. Any in-service medical records, even if they relate to a medical diagnosis of vertigo, would not establish that the Veteran had vertigo during the pendency of his claim, particularly because the Veteran separated from service in 1973 and did not file his claim until 2015. Therefore, no prejudice results to the Veteran by adjudicating this claim without potential in-service medical records. REASONS FOR REMAND 1. Service connection for hypertension is remanded. 2. Service connection for residuals of stroke is remanded. The Board addresses the Veteran's claims for service connection for hypertension and stroke residuals together as they involve similar factual and legal analyses. VA has a duty to assist claimants in the procurement of various records in developing their claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. This duty includes obtaining relevant records in the custody of a Federal department or agency, such as military records, including service medical records. 38 C.F.R. § 3.159(c)(2). The Veteran's military records document service in Germany between 1971 and 1973. The Veteran testified he received treatment in Germany due to his stab wound, which his fellow military serviceman confirmed. The Board does not find any evidence that medical records for his treatment in Germany were sought or were unavailable after making reasonable attempts. As the Veteran's claims for service connection for hypertension and stroke residuals (which he asserts were caused by his hypertension) require analysis of blood pressure readings in service, and the likelihood that blood pressure readings may be contained within the Veteran's in-service medical records from Germany, remand is required to make attempts to obtain such records if they exist. Accordingly, the matters are REMANDED for the following actions: 1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file. 2. Attempt to obtain the Veteran's in-service treatment records for his period of service in Germany from 1971 through 1973, as he had indicated receiving treatment in Germany. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. Required notice must be provided to the Veteran and his or her representative. (Continued on the next page) 3. After any additional records are associated with the claims file, the VA Regional Office should readjudicate the Veteran's claims for service connection for hypertension and stroke residuals. When doing so, the VA Regional Office shoulder consider whether the presumption of soundness or the presumption of aggravation apply in this case. The VA Regional Office's attention is directed to the Veteran's November 1970 enlistment examination that documents multiple blood pressure readings on November 6 and 13, 1970. In addition, the Veteran testified at his Board hearing that he had hypertension prior to entry into service and it worsened in service or due to service. After proper development, if the VA Regional Office deems VA examinations necessary to adjudicate the claims, then they should be provided. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, Associate 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.