Citation Nr: 18123990
Decision Date: 08/06/18	Archive Date: 08/03/18

DOCKET NO. 14-41 516
DATE:	August 6, 2018
ORDER
Service connection for PTSD is granted.
REMANDED
Entitlement to service connection for lumbar spine injury with residuals is remanded.
FINDING OF FACT
The Veteran’s current PTSD is at least as likely as not related to his active military service stressor(s).
CONCLUSION OF LAW
The criteria for service connection for PTSD have been met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from August 2007 to December 2010.  These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision and a May 2012 determination of a Department of Veterans Affairs (VA) Regional Office (RO). 
The Board notes that an RO Decision in May 2014, denied service connection for PTSD because new and material evidence was not provided to reopen the claim.  After reviewing the record, the Board finds that no final decision was rendered during the pendency of the claim.  Therefore, the Board finds that reopening the claim was not warranted based on the following facts below.
The Veteran filed a service connection claim for PTSD in October 2011.  The RO first denied the claim in May 2012.  A timely notice of disagreement (NOD) was also filed in June 2012.  The Veteran asserted in the NOD that service connection should be warranted for his anxiety disorder in lieu of the denial for PTSD, because he was diagnosed with panic disorder without agoraphobia during an April 2012 VA examination.  Thereafter, the RO requested a VA medical opinion to determine the etiology of his panic disorder in August 2012.  However, he was notified in a separate VA letter dated September 2012, that his anxiety condition was considered part of his PTSD claim and his anxiety claim was not considered new and material evidence to reopen his PTSD claim.  The Board notes that there was no statement of the case (SOC) issued.  The Veteran submitted a statement of support in March 2013, that included a letter from his treating psychiatrist, Ph.D. NM.  The letter diagnosed the Veteran with PTSD and provided a nexus opinion relating his PTSD to his active military service.  Subsequently, he was afforded another VA examination for PTSD in April 2014.  Following the examination, the RO issued the May 2014 rating denying PTSD, stating that new and material evidence had not been provided.  The Board notes that once again no statement of the case (SOC) was issued.  An SOC for the PTSD claim was finally issued in May 2015 and the Veteran filed a Form 9, perfecting his appeal in a timely manner in June 2015.  Thus, as new and material evidence has been timely submitted after the prior AOJ determinations and a statement of the case was not issue until 2015, the Board finds that the original claim for PTSD received by VA in November 2011 remains pending.    
Entitlement to service connection for PTSD.
Legal Criteria
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing:  (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.  Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
Establishing service connection for PTSD claims requires three elements: 
(1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between a Veteran’s present symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304; Cohen v. Brown, 10 Vet. App. 128, 139 (1997).
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); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990).
Analysis
The evidence of record is at least in equipoise as to whether the Veteran’s PTSD is related to his active military service.
As noted above, the Veteran served on active duty from August 2007 to December 2010.  His DD 214 states he served in a designated imminent danger pay area with service in Iraq from January 2009 to January 2010.  On his Post-Deployment Health Re-Assessment (PDHRA) dated May 2010, he annotated that he would be interested in receiving information or assistance for stress, emotional, or alcohol concerns. Furthermore, the clinical assessment commented that the Veteran had no significant medical or psychiatric issues, however the block regarding PTSD symptoms was checked as a minor concern.
In a statement of support submitted with his claim dated December 2011, the Veteran contends he was exposed to daily fear of hostile military or terrorist activity during his deployment to Iraq and never felt safe while in the country.  
As will be discussed further below the Veteran indicated specific combat stressors during his VA examinations. Therefore, the record shows he was a combat Veteran who contends that he has PTSD linked to his military service.  38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f).  The question for the Board is whether there is a PTSD diagnosis and whether the diagnosis in question is related to his active military service.
The record contains conflicting reports regarding a diagnosis for PTSD.  After his discharge, VA treatment records in March 2011, reveal he had positive screenings for PTSD and depression. Although, he did not seek mental health treatment until December 2011, following a panic attack that had occurred earlier in the same year in July.
In April 2012, the Veteran was afforded a VA examination.  During the examination he reported two stressors while he was deployed.  One involved witnessing a truck hit an improvised explosive device (IED) and him having to clean up the site afterwards, specifically mentioning cleaning up blood. The other stressor was the loss of a friend in a platoon that he had requested an assignment in, but was instead placed in another platoon.  A month after his request in July 2009, the platoon was attacked and his friend died.  The VA examiner concluded that the Veteran did not meet PTSD criteria under DSM-IV criterion.  Notably, the examiner provided a diagnosis of panic disorder without agoraphobia, which led the RO to grant only treatment for the condition in a May 2012 rating decision, which also denied the PTSD claim.  
Following the May 2012 denial, the RO requested a VA medical opinion in August 2012 to determine the etiology of his panic disorder.  The examiner opined that the condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The rationale was because although the Veteran annotated symptoms of depression on his PDHRA, his first panic attack was not until nearly a year later and possibly due to the ingestion of an energy drink.  Furthermore, records did not reflect any additional panic attacks after the first one.  
In February 2013, the Veteran submitted a statement of support for his PTSD claim that included a letter from his treating psychiatrist, MN, Ph.D..  The psychiatrist had been treating the Veteran prior to his enlistment because his mother had been in an abusive relationship with his father prior to their divorce, which had impacted him.  She noted in the letter that prior to his enlistment the Veteran had no PTSD symptoms and following his military service she observed symptoms such as difficulty sleeping; frequent nightmares; bouts of anger and depression; use of psychotropic medications; and difficulty establishing and nurturing interpersonal relationships. Moreover, she concluded that his current PTSD symptoms were related to his military tour of duty in Iraq.  The Board notes that a diagnosis of PTSD by a health care professional is presumed to be in accordance with the applicable DSM criteria.  Cohen v. Brown, 10 Vet. App. 122, 139-40 (1997).  
As such, there is competent evidence of a current PTSD diagnosis.  
Therefore, the Board finds that the evidence of record is in equipoise regarding a PTSD diagnosis and nexus to his military service.  In this regard, the Veteran served in a combat zone and has provided stressor incidents related to a friend dying during service and the sight of an IED detonating while he watched the explosion.  As noted above, the Board finds his stressors credible and consistent with circumstances, conditions, or hardships of military service.  Further, 
VA treatment records from 2011 show diagnoses for PTSD and depression.  His private psychiatrist who treated him prior to his enlistment and after his discharge has diagnosed him with PTSD.  Contrary, opinions regarding his PTSD and his panic disorder were provided by VA examiners, thus the evidence is in balance and as such, the benefit of the doubt doctrine finds that when there is an approximate balance of positive and negative evidence the Veteran must prevail. Therefore, service connection is warranted for the Veteran’s current PTSD.
In sum, the Board finds that the weight of competent probative evidence is in equipoise diagnosing the Veteran with PTSD in accordance with 38 C.F.R. § 4.125(a); there is an established link by medical evidence, between his present symptoms and an in-service stressor; and there is credible supporting evidence that the claimed in-service stressor occurred.  Therefore, service connection is granted for his PTSD claim.
REASONS FOR REMAND
Entitlement to service connection for lumbar spine injury with residuals is remanded.
After review of the evidence of record, the Board finds remand is warranted to further develop the service connection claim regarding the Veteran’s lumbar spine injury with residuals.  Specifically, the file does not contain entrance or discharge examinations.  The Board notes that the RO requested service treatment records from the Army Reserve in June 2011.  However, the Veteran was an active duty soldier.  The only STRs in the claims file are records provided by the Veteran in September 2011.  There is no indication in the claims file that the RO attempted to retrieve the Veterans records from another repository.  Furthermore, the Veteran was afforded a VA examination for his lumbar spine in July 2011.  The examiner annotated the claims file was not available for review.  Thus, there is a question as to the adequacy of the examination since the examiner did not have a full understanding of the claimant’s medical history.  Therefore, remand is warranted to attempt a search for additional records that may need to be associated with the file and to afford the Veteran another VA examination that provides the examiner with his full medical history.
Additionally, updated VA treatment records should be associated with the record on remand.  See Sullivan v. McDonald, 815 F.3d 786, 792 (Fed. Cir. 2016) (finding that because § 3.159(c)(3) expanded the VA’s duty to assist to include obtaining VA medical records without consideration of their relevance.)
The matter is REMANDED for the following actions:
1. Request the Veteran’s service treatment records from August 2007 to December 2010, specifically entrance and separation examinations during active military service.
2. Update/Obtain VA treatment records from March 2015 to the present.  Document all requests for information as well as responses in the claims file.

(CONTINUED ON THE NEXT PAGE)
 
3. After completion of steps #1 and #2, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his lumbar spine disability.  The examiner is to provide an opinion whether is it at least likely as not related to an in-service injury, event, or disease. A comprehensive rationale is to be provide.

 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. M. Williams, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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