Citation Nr: 21070631 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-13 531 DATE: November 24, 2021 ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for hypertension is granted as secondary to service-connected PTSD. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD based on an established, in-service stressor. 2. The Veteran's hypertension is attributable to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. 2. The Veteran's hypertension is proximately due to, or the result of, his service-connected PTSD. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Marine Corps from May 1971 to February 1975. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2017. A transcript from that proceeding is associated with the claims file. In a December 2017 decision, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development and adjudication. The case has since been returned to the Board for appellate review. The Board notes that the July 2012 rating decision denied entitlement to service connection for PTSD (also claimed as nightmares), and the Veteran filed a timely notice of disagreement in August 2012. The AOJ subsequently issued an August 2012 rating decision that denied entitlement to service connection for anxiety disorder not otherwise specified and panic disorder (also claimed as depression). Although this issue was separately adjudicated from the Veteran's service connection claim for PTSD, the United States Court of Appeals for Veterans Claims (Court) has held that service connection claims for PTSD encompass claims for service connection for all psychiatric disabilities. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). Consequently, the Board has expanded the issue to include all current psychiatric disorders. In addition to the issues listed above, the December 2017 Board decision remanded the issue of entitlement to service connection for a back condition. The AOJ later issued a September 2019 rating decision that granted entitlement to service connection for lumbosacral strain with degenerative arthritis of the spine (claimed as back condition). The grant of service connection for this disability constitutes a full award of the benefits sought on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, that issue is not before the Board. The Board also notes that the AOJ readjudicated the remaining service connection claims on appeal in an August 2021 supplemental statement of the case (SSOC). However, the August 2021 SSOC also addressed the issue of entitlement to an initial compensable disability rating higher than 0 percent disabling for dermatitis prior to June 26, 2015, and in excess of 30 percent from June 26, 2015. The AOJ incorrectly stated in the SSOC that the Board remanded the Veteran's appeal of this issue in an October 2017 decision. In fact, the December 2017 Board decision discussed above adjudicated rather than remanded the Veteran's initial increased rating claim for his dermatitis disability that stemmed from the July 2012 rating decision. As such, this issue is not before the Board. The Board also notes that during the pendency of the Veteran's initial increased rating claim for his dermatitis disability that was adjudicated in the December 2017 Board decision, the AOJ issued a July 2015 rating decision that granted an increased rating of 30 percent for the disability effective from June 26, 2015. The Veteran subsequently submitted a notice of disagreement in August 2015 in which he indicated that he sought an earlier effective date of July 1, 2010 for the award of the increased rating, the initial effective date for the grant of service connection for the disability. However, the Board notes that this issue was addressed by the Board's subsequent December 2017 decision that considered whether an initial compensable rating was warranted during the period prior to June 26, 2015. As such, the Board finds that the issuance of a statement of the case in response to this notice of disagreement pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) is unnecessary. Service Connection 1. Entitlement to service connection for a psychiatric disorder, to include PTSD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection for PTSD requires medical evidence diagnosing the condition; 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). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-5). 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45, 094 (August 4, 2014). VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for VA Purposes, 80 Fed. Ref. 14,308 (March 19, 2015). As the Veteran's appeal was certified to the Board with a July 2015 VA Form 8, the DSM-5 is applicable in the present case. The pertinent regulation provides that, if the evidence establishes that the Veteran engaged in combat with the enemy and that 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. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(1). For stressors unrelated to combat that are not based on fear of hostile military or terrorist activity, credible supporting evidence is necessary in order to grant service connection. Such evidence may be obtained from service records or other sources. See Moreau v. Brown, 9 Vet. App. 389 (1996). The United States Court of Appeals for Veterans Claims (Court) has held that the regulatory requirement for "credible supporting evidence" means that "the appellant's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Therefore, the Veteran's lay testimony, is insufficient, standing alone, to establish service connection. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). Effective July 13, 2010, if a stressor claimed by a veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device (IED); vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or physiological state of fear, helplessness, or horror. See 75 Fed. Reg. 39843, 39852 (July 13, 2010) (now codified at 38 C.F.R. § 3.304(f)(3). The Veteran contends that he has PTSD as a result of different stressful experiences that occurred during his active duty service. The Veteran was initially provided with a VA examination related to his claim in January 2011. During the examination, the Veteran indicated that he began to have psychiatric symptoms after his return from Vietnam, and the symptoms had continued since that time. The examiner noted that the Veteran was stationed in North Carolina and Okinawa. However, he was also aboard a ship in the Gulf of Tonkin for 5 months and sent to an air base to repair the radio there. Although he was never in combat, the Veteran reported that while he was on the air base, he always felt like the enemy might shoot at him as his best friend had been hit by sniper fire while leaving a radio shack. The January 2011 VA examiner determined that the stressor criteria for PTSD were absent. The examiner found that the Veteran was never exposed to a traumatic event sufficient to satisfy the stressor criteria for PTSD. The examiner instead noted Axis I diagnoses of anxiety disorder not otherwise specified (NOS) and possible panic disorder without agoraphobia. In a July 2012 addendum, the examiner also provided a negative nexus opinion. During a subsequent VA examination related his claim in April 2019, the Veteran similarly reported that one of his in-service stressors involved the Veteran learning of the death of his best friend by a sniper. See April 2019 VA examination. He informed the examiner that since that event occurred, he feared for his own life. In a separate February 2019 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, the Veteran indicated that this event occurred while his unit of the 9th Marine Amphibious Brigade was attached to the USS Paul Revere in the Gulf of Tonkin in September 1972. During the April 2017 Board hearing, the Veteran indicated that he acted a courier while serving on the USS Paul Revere in the Gulf of Tonkin. He stated that a helicopter would pick him up and take him to an Army base with courier messages from the general who was on the ship. The Veteran also submitted photographs that he testified were from his service on the ship in 1972. He reported that the photographs showed him on the flight deck of the ship with Da Nang, Vietnam in the background as well as the helicopters that were used. The Board observes that the photographs do appear to show the Veteran aboard a ship, and they include pictures of a helicopter and what appears to be a coastline in the background. A review of the Veteran's military personnel records reveals that a November 1972 Certificate of Service was awarded to the Veteran for service with the 9th Marine Amphibious Brigade Fleet Marine Force, Pacific. The certificate stated that as a member of the combat-ready Fleet Marine Force organization, the Veteran made a significant contribution to national security, world peace, and to the defense and security of allies in the Republic of Vietnam. The Veteran's Record of Service in his military personnel records indicates that he served with the 9th Marine Amphibious Fleet Marine Brigade as a radio relay operator from September 1972 through November 1972. The Veteran's combat history in his military personnel records stated that he later participated in combat support operations with Task Force Delta in Nam Phong, Thailand from January 1973 to August 1973. The Veteran's service treatment records (STRs) do not show a complaint, diagnosis, or treatment related to PTSD. The May 1971 enlistment examination noted that the Veteran's psychiatric functioning was normal on clinical evaluation. The Veteran also did not report having a history of any psychiatric symptoms in the May 1971 Report of Medical History. An October 9, 1972 STR noted that the Veteran was seen for a cold at the USS Paul Revere LPA-248, FPO San Francisco, 96601. Additional STRs dated on October 11, 1972 and October 16, 1972 were similarly noted to be documented aboard the USS Paul Revere. The January 1975 separation examination noted that the Veteran's psychiatric functioning continued to be normal. The April 2019 VA examiner stated that the stressor discussed above met criterion A (i.e., it was adequate to support the diagnosis of PTSD), and the stressor was related to the Veteran's fear of hostile military or terrorist activity. The examination was also conducted by P.G., a psychology Compensation and Pension VA examiner, indicating that P.G. was a VA psychologist. Thus, and resolving any reasonable doubt in favor of the Veteran, the Board finds that the criteria set forth in 38 C.F.R. § 3.304(f)(3) regarding confirmation from a VA psychologist or psychiatrist are met. In addition, the Board finds that this stressor is consistent with the places, types, and circumstances of the Veteran's service. In this regard, the record reflects that the AOJ attempted to verify the Veteran's stressors by contacting the National Archives and Records Administration. See, e.g., July 2020 Letter. Although the AOJ highlighted the stressor involving the friend being killed by a sniper as well as a separate stressor involving a lieutenant falling from a helicopter that also occurred during the Veteran's service with the 9th Marine Amphibious Brigade while the unit was attached to the USS Paul Revere, the National Archives and Records Administration indicated that its October 2020 response related to the stressor involving the lieutenant. The response noted that the Command Chronology for the 9th Marine Amphibious Brigade in Record Group 127: Records of the US Marine Corps ended in April 1972, and they did not resume until 1975. While they were in the South China Sea at that time, the Command Chronologies for the 9th Marine Amphibious Brigade did not account for casualties. The letter recommended contacting the Veteran or obtaining his service record to find out if he was part of one of the subordinate commands to the 9th Marine Amphibious Brigade such as a helicopter squadron or infantry unit. Regarding the USS Paul Revere during the same period, the response stated that the US Navy Deck Logs dated from 1956 to 1978 had been digitized by VA in partnership with the National Archives. The digitization of these records had been completed, and VA maintained a complete set of the digitized records. VA was involved in an ongoing process of adding the digitized images of the US Navy Deck Logs to VA's Ship Locator Tool. Once the images were added to VA's Ship Locator Tool, the images were then transferred to the National Archives. The letter recommended reviewing the VA's Ship Locator Tool for the requested Deck Logs. If the Deck Logs were not currently available in this tool, the letter recommended checking back for regular updates. In July 2021, a professional researcher from the Veterans Benefits Administration, Office of Field Operations, Military Records Research Center, also responded to the AOJ's request for information regarding the Veteran's reported stressors. The response reported that they had completed a comprehensive search of the Veteran's claimed stressor event; specifically the Veteran's report that when he was assigned to the 9th Marine Amphibious Brigade from September 20, 1972 to November 30, 1972, a lieutenant with whom he was flying stepped out of the helicopter and fell to his death. Afterwards, the Veteran felt guilty as he did not report the incident. The Veteran additionally reported that his best friend was killed by a sniper. The National Archives and Records Administration Casualty Database was reviewed in an attempt substantiate the Veteran's claimed stressor event. The Records Research Center also requested records from Marine Corps Archivist, Marine Corps History Division, the custodian of Command Chronologies. However, the Marine Corps Archivist was unable to locate records for the unit and dates the Veteran provided. In conclusion, no evidence was located to support documentation of the claimed event. The Board has considered these responses in addition to the information documented in the Veteran's STRs and military personnel records that are consistent with the Veteran's report that he served aboard the USS Paul Revere during the same time period in 1972 that he was a member of the 9th Marine Amphibious Brigade. The Board also finds that the Veteran's report that he traveled via helicopter from the USS Paul Revere to a military base in Da Nang for the purpose of delivering communications and/or repairing a radio does not appear to be entirely inconsistent with the Veteran's noted duty from this period of radio relay operator. The Veteran has also highlighted the information in the November 1972 Certificate of Service and the images from his 1972 photographs as evidence that is consistent with his contention that he was in the Gulf of Tonkin while serving on the USS Paul Revere. In addition, the responses from the National Archive and Records Administration and the Military Records Research Center reflect that there are no available records to refute the Veteran's reported history of events related to the stressor involving his friend being shot by a sniper. Based on the foregoing, and resolving any doubt in favor of the Veteran, the Board finds that the Veteran's stressor has been established. Thus, the only remaining question is whether the Veteran has a current diagnosis of PTSD based on his established stressor. The April 2019 VA examiner found that the Veteran had a diagnosis of PTSD that conformed to the DSM-5 criteria based on the evaluation on that date. The examiner also remarked that the Veteran fit all the DSM-5 criteria, but he had never wanted to talk about the stressors. Although the April 2019 examiner separately stated in the report that the Veteran had more than one mental disorder diagnosed, no other psychiatric disorder diagnosis apart from PTSD was noted in the diagnosis section of the report. In addition, the examiner later responded "not applicable" to the question regarding whether it was possible to determine what level of impairment was caused by each mental disorder. The examiner also explained that although panic disorder was added to the Veteran's problem list in October 2014, his symptoms did not fit the DSM-5 criteria for such a diagnosis. The examiner additionally found that a diagnosis for obsessive compulsive disorder was inappropriate based on the Veteran's symptoms. The examiner opined that the Veteran had a diagnosis of PTSD that was at least as likely as not proximately due to, or the result, of his service in Vietnam/Thailand. The examiner also stated that both stressor 1 and stressor 2, which references the Veteran's established stressor involving the sniper, contributed to the Veteran's PTSD diagnosis. Although the Board has also considered the January 2011 VA examiner's finding that the Veteran did not meet the criteria for a PTSD diagnosis, the Board finds that this determination has minimal probative value as it does not appear to have been based on the DSM-5 criteria that are required to support a PTSD diagnosis under the circumstances of this appeal. As this conclusion was provided before the May 2013 release of the DSM-5, the Board presumes that it was made in accordance with the DSM-IV criteria. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). In contrast, the Board finds that the April 2019 VA examiner's determination is highly probative as the examiner considered the Veteran's established stressor and clinical findings from the examination before concluding that the stressor at least partly contributed to his current diagnosis of PTSD under the DSM-5 criteria. Based on the foregoing, the Board finds that the most probative evidence supports the conclusion that the Veteran has a current diagnosis of PTSD under the DSM-5 criteria that is related to his established stressor. With resolution of reasonable doubt in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. §§ 101, 1110; 38 C.F.R. §§ 3.6, 3.102, 3.303, 3.304(f), 4.125(a). In reaching this decision, the Board acknowledges that the Veteran has been diagnosed with various psychiatric disorders during the appeal period. However, the benefit sought on appeal is granted in a manner consistent with the fact that the most probative evidence shows that the proper DSM-5 diagnosis for the Veteran's current psychiatric symptoms is PTSD. Thus, the Board concludes that service connection for PTSD is warranted. 2. Entitlement to service connection for hypertension, to include as due to exposure to herbicide agents and/or as secondary to service-connected PTSD. In addition to the criteria for service connection noted above, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including hypertension, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of a chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this decision, all blood pressure measurements are noted in units of pressure in millimeters of mercury (mmHg). For VA compensation purposes, the term hypertension means that the diastolic blood pressure is predominantly 90 or greater; and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with diastolic blood pressure less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). In addition, hypertension must be confirmed by readings taken two or more times on at least three different days. See id. If a veteran was exposed to an herbicide agent during active military, naval, or air service, certain diseases shall be service-connected if the requirements of section 3.307(a)(6) are met even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of section 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). Section 3.307(a)(6) provides that the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975. 38 C.F.R. § 3.307(a)(6)(i). Section 3.307(a)(6) also provides that a veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). For the purposes of § 3.307, the term herbicide agent means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during the Vietnam era. 38 C.F.R. § 3.307(a)(6)(i). Agent Orange is generally considered an herbicide agent and will be so considered in this decision. Notwithstanding the foregoing, regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). Service connection may also be granted where a disability is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 48 (1995) (en banc). The Veteran contends that he has hypertension that is directly related to in-service exposure to herbicide agents. The record has also raised the theory that the Veteran's hypertension is secondary to his now service-connected PTSD. The Veteran's STR do not show a complaint, treatment, or diagnosis for hypertension. The Veteran's blood pressure was noted to be 134/80 in the May 1971 enlistment examination. The Veteran also did not report having a history of high or low blood pressure in the May 1971 Report of Medical History. The January 1975 separation examination noted that the Veteran's blood pressure was 138/82. After service, a February 2010 VA treatment record, which is among earliest available post-service records, noted an assessment of hypertension. A January 2011 VA examination related to psychiatric disorders also noted that the Veteran suffered from hypertension. When the Veteran was provided with a VA examination related to his service connection claim in April 2019, the examiner noted that he had a current diagnosis for hypertension. The Veteran informed the examiner that he was told that his blood pressure was up during an employment examination in 1976, and he was finally started on medication in the 1980's. In an April 2019 opinion, the examiner noted that the Veteran did have PTSD with nightmares from his deployment to Vietnam, and the examiner found that the stress from this disability was at least as likely as not responsible for the Veteran's hypertension; particularly in light of the young age at which the Veteran started receiving treatment. The Board finds that the examiner's conclusion provides probative value as it addresses the medical issues in this case and was based on an analysis of the evidence and current medical understanding. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (providing that an examination is not rendered inadequate where the rationale provided by an examiner did not explicitly lay out the examiner's journey from facts to a conclusion); see also Acevedo v. Shinseki, 25 Vet. App. 289, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). To the extent that the examiner relied in part of the Veteran's reported history that he began to receive treatment for hypertension in the 1980's, the Board notes that the Veteran is competent report observable symptomatology and events that he experienced. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board also finds the Veteran's reported history to be credible is there is no evidence to directly contradict his report. Based on the foregoing, the most probative evidence of record shows the Veteran's current hypertension is due to, or the result of, his psychiatric disability. Service connection for hypertension is therefore granted as secondary to service-connected PTSD. 38 C.F.R. § 3.310. As the Board is granting entitlement to service connection on this basis, it is unnecessary to address any other theory of service connection that has been advanced. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.C. Spragins, 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.