Citation Nr: 18154142
Decision Date: 11/29/18	Archive Date: 11/29/18

DOCKET NO. 14-25 003
DATE:	November 29, 2018
ORDER
Entitlement to service connection for a psychiatric disorder other than anxiety disorder, diagnosed as PTSD, is granted.
REMANDED
Entitlement to service connection for a total disability rating based on individual unemployability (TDIU) is remanded.
FINDING OF FACT
The Veteran has been diagnosed with PTSD based on an established, in-service stressor.
CONCLUSION OF LAW
The criteria to establish entitlement to service connection for a psychiatric disorder other than anxiety 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.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran had active service in the United States Army from April 1969 to November 1970.
This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision.
The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in February 2018.  A copy of a transcript from that proceeding is associated with the Veterans Benefits Management System (VBMS) folder.
The August 2011 rating decision denied the Veteran’s service connection claims for PTSD and major depression disorder.  The Veteran's service connection claim for PTSD was initially denied in an April 1997 rating decision.  Although the evidence list in the rating decision included service treatment records (STRs) for the period from April 29, 1969 to November 9, 1970, the body of the decision stated that STRs from this period were not available.  However, the evidence associated with the claims file since the issuance of the April 1997 rating decision includes the STRs that were noted to be unavailable.  As these records contain findings regarding the Veteran’s psychiatric functioning during service, they are pertinent to the Veteran's claim. 
Applicable regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence).  The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records.  38 C.F.R. § 3.156(c)(1)(i).  Thus, new and material evidence is not needed to reopen a previously denied claim when relevant personnel records and/or any other relevant service department records are received after a prior final denial.  The claim is instead reviewed on a de novo basis.  In light of the relevant official service department records received after the April 1997 rating decision, the Veteran's service connection claim for PTSD will be reviewed on a de novo basis.
The record also shows that the Veteran’s service connection claim for anxiety disorder was previously denied by a December 2008 rating decision, and the August 2011 rating decision separately declined to reopen this claim.  However, the Veteran’s October 2011 notice of disagreement (NOD) only included his service connection claims for PTSD and major depression disorder.  In addition, as the Veteran's service connection claims for PTSD and major depression disorder arise from different diagnoses, these claims will be considered separate and distinct from the Veteran's previous service connection claim for anxiety disorder.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008).  Although the Veteran's service connection claims for PTSD and major depression disorder have been adjudicated separately by the RO, 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 characterized the issue as entitlement to service connection for a psychiatric disorder other than anxiety disorder, to include PTSD and major depression disorder. 
1.  Entitlement to service connection for a psychiatric disorder other than anxiety disorder, to include PTSD and major depression disorder.
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).  In the present case, the Veterans Appeals Control and Locator System (VACOLS) reflects that the RO certified the Veteran's appeal to the Board in July 2014, which is before August 4, 2014.  Thus, the DSM-IV 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).
The Veteran contends that he has PTSD and/or major depression disorder as a result of active service.  
The Veteran’s STRs are silent for any complaints, treatment, or diagnoses related to a psychiatric disorder.  However, the Veteran has identified different stressors during service as the basis for his current PTSD.  One stressor involved the Veteran experiencing sniper attacks during his combat service in Vietnam.  See October 2010 VA examination.  The Veteran’s DD 214 shows that he had active service in the Republic of Vietnam from October 1969 to November 1970, and his military occupational specialty (MOS) was light weapons infantryman.  In addition, he received the Combat Infantryman Badge.  In light of this evidence, the Board finds that the Veteran engaged in combat during his active service.  The Veteran’s reported stressor is also consistent with the circumstances of his service.  Thus, the Veteran’s lay statement is sufficient to establish this combat-related stressor.
The only remaining question is whether the Veteran has a current diagnosis of PTSD based on his established stressor.  A VA examiner provided an opinion regarding this question after conducting a VA examination in October 2010.  The examiner acknowledged that the Veteran met the DSM-IV stressor criteria for PTSD.  However, the examiner found that he did not meet the symptom criteria for a DSM-IV diagnosis as the reliving experience and avoidant behavior symptoms were not found.  Therefore, there was no diagnosis of PTSD.  He determined that the appropriate Axis I diagnosis was major depression disorder.  
However, the record also includes an earlier VA treatment record from the appeal period dated in August 2010 that documented an Axis I diagnosis of PTSD.  The record reflects that the VA staff psychologist arrived at this diagnosis after the Veteran discussed his combat experiences.  As the Veteran has been consistent in reporting that his combat experiences involved the conceded sniper attack, the Board finds that this diagnosis was based on his established stressor.  See October 2010 VA examination; April 2012 Statement in Support of Service Connection Claim for PTSD.  Subsequent VA treatment records have also indicated that the Veteran has a PTSD diagnosis.  See VA treatment records dated in November and December of 2010.  As these diagnoses were provided before the May 2013 release of the DSM-5, the Board presumes that they were made in accordance with the DSM-IV criteria.  See Cohen v. Brown, 10 Vet. App. 128, 140 (1997).
Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has a current diagnosis of PTSD under the DSM-IV criteria that is based on his established stressor.  Resolving all benefit of the doubt in the Veteran's favor, service connection for PTSD is granted.  38 C.F.R. § 3.304(f); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1999).
The Board notes that the Veteran also received a diagnosis for major depression disorder during the appeal period.  However, the evidence does not differentiate the symptoms attributable to PTSD versus those due to this disorder.  See Mittleider v. West, 11 Vet. App. 181 (1998).  Therefore, the Board considers all manifested psychiatric symptoms as being due to his PTSD.
REASONS FOR REMAND
1.  Entitlement to a TDIU is remanded.
The Board finds that the Veteran’s claim for a TDIU is inextricably intertwined with the initial evaluation and effective date assigned for the PTSD disability granted herein.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).  Final appellate review of the Veteran's claim for a TDIU must be deferred until the initial evaluation and effective date for his PTSD disability are assigned and the matter is either resolved or prepared for appellate review.  
The matter is REMANDED for the following action:
1.  After rendering an initial evaluation and effective date for the Veteran's now service-connected PTSD, take all appropriate action to readjudicate the Veteran's claim for entitlement to a TDIU, including any development deemed necessary.
2. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.
 
GAYLE STROMMEN
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.C. Spragins, 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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