text:
Citation Nr: 1510760
Decision Date: 03/13/15    Archive Date: 03/24/15

DOCKET NO.  10-10 851	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Portland, Oregon

THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and major depression.

2.  Entitlement to total rating for compensation purposes based on individual unemployability (TDIU).

REPRESENTATION

Appellant represented by:	Harold H. Hoffman III, Attorney

WITNESS AT HEARING ON APPEAL

Appellant

ATTORNEY FOR THE BOARD

K. Hughes, Counsel

INTRODUCTION

The Veteran had active military service from May 1973 to October 1976.

These matters come before the Board of Veterans' Appeals (Board) from a February 2012 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Portland, Oregon.  In December 2013, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is of record.

In March 2014, the Board issued a decision denying service connection for an acquired psychiatric disorder, to include PTSD and major depression, and entitlement to a TDIU rating.  The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court).  In September 2014, the Court granted the Joint Motion for Partial Remand (Joint Motion); vacated that portion of the March 2014 Board decision which denied service connection for an acquired psychiatric disorder, to include PTSD and major depression, and entitlement to a TDIU rating; and remanded the appeal to the Board for additional action consistent with the Joint Motion.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the appellant if further action is required.

REMAND

The Veteran contends that he has PTSD and/or depression due to his service aboard a submarine, sleep-deprivation in service, "hazing", and a submarine drill.

The Veteran's STRs were negative for any findings of, or treatment for, an acquired psychiatric disability or symptoms of such.  The STRs contain complaints of a lump in his breast (April 1974, May 1974), a headache (June 1974), back pain (June 1974), an ingrown toe nail (four visits in July 1976), congestion, sore throat (August 1976) low back pain (four visits in September 1976), and low back pain (October 1976).  The records are negative for any complaints of fatigue, or lack of sleep.

The Veteran was assigned to Great Lakes, Illinois from July 1973 to October 1973.  He was assigned to the USS Albert David at some point in 1974.  He was assigned to the Naval Nuclear Power School at Mare Island, California from April 1974 to September 1974.  He was assigned to the NUCPWR (Nuclear Power) Plant Operator School at Idaho Falls, Idaho from October 1974 to April 1975.  He served about the USS Proteus from July 1975.  He served about the USS Theodore Roosevelt from approximately September 1975 to October 1976.  In October 1976, it was recommended that the Veteran not be reenlisted and that he be discharged for unsuitability (i.e. apathy, defective attitude, and inability to expend effort effectively).

The Veteran's enlisted performance record reflects that he had a professional performance rating of 3.6 in June 1974, and 3.4 in September 1974, April 1975, and July 1975, with a final trait average of 3.45.  He had a military behavior rating of 3.8 in June 1974, 3.6 in September 1974, 3.2 in April 1975, and 3.4 in July 1975, with a final trait average of 3.5.  He had a military appearance rating of 3.8 in June 1974, 3.6 in September 1974, and 3.4 in April 1975 and July 1975, with a final trait average of 3.55.  For adaptability, he had a 3.8 in June 1974, and 3.4 in September 1974, April 75, and July 1975, with a final trait average of 3.5.

An evaluation report for the period March 1974 to September 1974 reflects that the Veteran had low and declining performance, inconsistent effort, lackadaisical attitude on occasion, marginal motivation, and satisfactory military behavior.  The Board notes that this was prior to his service on a submarine and was while he was attending the Naval Nuclear Power School at Mare Island, California.

An evaluation report for a period ending in April 1975 reflects that the Veteran had completed prototype training and compared to other trainees of the same rate and experience, his rate of qualification progress was fair, his watch standing performance was fair, and his qualifications were good.

A service record reflects that on July 21, 1976 and July 22, 1976, the Veteran failed to go at the time prescribed to his appointed place of duty.  Again, this was prior to his time aboard the USS Theodore Roosevelt.

Another service record reflects that on August 24, 1976, August 26, 1976, August 27, 1976, August 30, 1976, and September 3, 1976, the Veteran failed to go to the appointed places of duty.

An August 1976 performance evaluation report reflects the following:

Since reporting aboard, [the Veteran] has experienced problems adapting to the demanding job of operating a nuclear power plant.  He has been delinquent in both departmental and ship's qualification since reporting aboard.  [The Veteran] has shown very little effort in completing qualification even though he has been counselled by his supervisors numerous times.  When [the Veteran] was assigned the duty of divisional Repair Parts Petty Officer, constant supervision was necessary to ensure that assigned tasks were carried out.  [The Veteran] has demonstrated little initiative in directing others and his negative attitude has also been reflected toward the naval service.  [The Veteran] is an individual who desires isolation from others.  He has been observed and counseled many times about unproductive use of his time when he should have been working on his qualifications or supply duties.  [The Veteran] does not take pride in his personal appearance when in uniform and has to be constantly prodded to ensure he meets the minimum standard of dress and grooming.  [the Veteran] has a good knowledge of both written and oral English and he supports the goals of Equal Opportunity.  He is not recommended for advancement or for reenlistment.

It further reflects, as follows:

[The Veteran] was prematurely relieved of his duties as Repair Parts Petty Officer due to his lack of responsibility.  [The Veteran] was also placed on a remedial study program to allow him to catchup on his qualification and become an effective member of the division.  [The Veteran] has made unsatisfactory progress in completing this study program.  [The Veteran] has consistently proven his unreliability by arriving late for duty numerous times.  Although he has received Commanding Officers' Non-Judicial Punishment for these infractions, and has been counselled, he continues to reject authority and go his own way.

A September 1976 Department of the Navy memorandum reflects that the Veteran was recommended for disqualification from submarine duty.  It notes that the Veteran was absent for an inspection due to a lack of concern for his duties.  A few days later, he was late for quarters several times and missed a muster.  The report reflects that the Veteran had been given non-judicial punishment, but did not respond positively.

The memorandum reflects that the Veteran had reported to the command in September 1975 from Nuclear Power training in Idaho Falls, after a three month assignment.  His performance at the School was noted to have been "inconsistent, lackadaisical, and at best fair".  Since reporting to the command, his performance "declined from marginal to poor."  It reflects that the Veteran had been counseled numerous times for failure to complete training in submarines.

In sum, the service personnel records reflect that the Veteran had performance and attitude problems for more than a year prior to discharge, and prior to his claimed in-service stressors of serving aboard a submarine.  Rather than reflect that the Veteran was overworked and solely responsible for certain aspects of his job as a parts repair personnel, it reflects that he was unproductive and needed constant supervision.

The Veteran has asserted that in April 1976, he was in fear for his life due to a drill which he believed was an actual imminent collision with an enemy vessel.  A Defense Personal Records Information Retrieval System report in response to a request for a deck log review reflects the following information: "We reviewed the March-May 1976 deck logs for the USS Theodore Roosevelt.  The deck logs reveal that the submarine was in a Guam dry-dock March 8-16, 1976 and underway for Special Operations with limited deck logs entries during the periods March 27-30, April 5-25, May 2-8, and May 10-31, 1976.  The deck logs do not document a no-notice collision alert drill during a combat patrol."

A copy of the ship's deck log sheet reflects that on May 7, [1976] (three weeks after the Veteran's alleged drill), the Veteran had a 1/4 inch by 1/8th inch laceration in his forehead.  The prognosis was good and the treatment was a bandage and return to duty.  The deck log is negative for any loss of consciousness.

The earliest clinical evidence of an acquired psychiatric disability is more than twenty years after separation from service.

The Board finds that, pursuant to the September 2014 Court Order granting the Joint Motion, further development is necessary prior to adjudication of the Veteran's claims of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and major depression, and entitlement to a TDIU rating.

The clinical evidence of record, including the Veteran's December 2012 VA examination report, includes findings that the Veteran's depression predated service.  An earlier November 2011 VA examination report concluded that there "does not appear to be a connection between his current psychological difficulties which are apparent and his service in the Navy..."

In a December 2014 Remand Argument, it is claimed that "the Veteran's stressors are sufficiently traumatic, especially considering the Veteran's already delicate psychiatric constitution."  It is further claimed that "in-service events aggravated a pre-service psychiatric condition that was not noted on the Veteran's military entrance examination."

Under 38 U.S.C.A. § 1111, a Veteran is entitled to a presumption of soundness on entry in service as to any disability not noted on examination for enlistment; such presumption can be rebutted only by clear and unmistakable evidence.  A history of a pre-service injury, of itself, is not a notation of a disability on service entrance, and does not suffice to rebut the presumption of soundness in the face of a normal clinical evaluation on service entrance.  In addition, if the presumption of soundness is rebutted, the Veteran is entitled to a further presumption that the disability not noted on entry in (but manifested during) service was aggravated by service.  This presumption likewise can be rebutted only by clear and unmistakable evidence (of non-aggravation).

The presumption of soundness applies only where there is evidence that a disease or injury was not noted upon entry into service manifested or was incurred in service.  Once the presumption of soundness is applied, if the Secretary is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established.  At that point, however, a veteran still must establish that he has a current disability that is related to the in-service injury or disease.  This nexus determination is based on a weighing of the evidence by the preponderance of the evidence standard, with the benefit of the doubt given to the veteran.  It is error to apply the presumption of soundness without first addressing or finding whether the Veteran's psychiatric disability manifested in service.  See Gilbert v. Shinseki, 26 Vet. App. 48, 54-55 (2012)

Because the Veteran was clinically normal on May 1973 psychiatric evaluation for enlistment, he is entitled to a presumption of soundness on entry in service with respect to a psychiatric disorder if a psychiatric disorder was manifest during service.  An examination that addresses the etiology of the Veteran's current psychiatric disability taking into account the applicable legal presumptions is necessary.

The December 2014 Remand Argument notes that the Veteran's treatment records from D. S., LCSW (licensed clinical social worker), have not been obtained and provides the contact information for this clinician.  Further, the most recent VA treatment records available for review are dated in October 2012.  VA should obtain all relevant VA and private treatment records which could potentially be helpful in resolving the Veteran's claim.  See Murphy v. Derwinski, 1 Vet. App. 78, 81-82 (1990); Bell v. Derwinski, 2 Vet. App. 611 (1992).

The claim of entitlement to a TDIU rating is inextricably intertwined with the matter of service connection for an acquired psychiatric disability, to include PTSD and major depression, and consideration of that issue must be deferred pending resolution of the service connection claim.

Accordingly, the case is REMANDED for the following action:

1.  Ask the appellant to identify all providers of mental health evaluation or treatment he has received, to include prior to his 1973 enlistment and after his 1976 separation from service and to provide all authorizations necessary for VA to obtain any private records of such evaluations and treatment that are not already associated with the record.  The attention of the RO is specifically directed to records from the D. S., LCSW.  All updated VA treatment records should also be obtained.

2.  Thereafter, the Veteran should be afforded a VA psychiatric examination.  The claims folder, including a copy of this remand, should be reviewed by the examiner, and the examination report should reflect that review.  All appropriate tests should be conducted.  The examiner must offer opinions to the following:

(a) Please identify (by medical diagnosis) each psychiatric disability entity currently found, including whether the Veteran has depression and PTSD.  Specifically, does the Veteran meet the criteria for a diagnosis of PTSD (including based on fear of hostile action)?  If so, please identify the stressor and symptoms supporting such diagnosis.  If PTSD is not diagnosed, indicate clearly what symptom(s) needed for such diagnosis is/are lacking.

(b)  As to each currently diagnosed acquired psychiatric disorder, please offer an opinion as to whether that disorder was manifest during service.  In doing so, please address whether any of the performance/disciplinary problems which the Veteran had in service represented symptoms of a current psychiatric disability.

(c) If (and only if) a current psychiatric disorder was manifest during service, please offer an opinion as to whether is it clear and unmistakable (obvious, manifest, or undebatable) that the acquired psychiatric disorder that was present during service existed prior to active military service?  If it is determined that a psychiatric disorder did not exist prior to service, the examiner should reconcile such finding with the December 2012 VA examination report, which includes the finding that the Veteran's depression predated service.

(d)  If the acquired psychiatric disorder existed prior to active military service, is it also clear and unmistakable (obvious, manifest, or undebatable) that such disorder was not aggravated during or by his active military service beyond the condition's natural progression?  Any clear and unmistakable (obvious, manifest, or undebatable) evidence which serves as the basis for any opinion must be specifically identified.

(e)  If a current psychiatric disorder was not present during service then is it at least as likely as not (50 percent or greater probability) that the current psychiatric disorder is otherwise etiologically related to the Veteran's period of active service?

(f)  Do the diagnosed psychiatric disorders, including PTSD, prevent the Veteran from securing or following a substantially gainful occupation?

The opinions provided must specifically reflect consideration of the Veteran's military performance evaluations and his post service VA and private treatment records and examination reports.  The examiner must explain the rationale for all opinions in detail, citing to supporting clinical data and/or medical literature, as appropriate.

3.  Thereafter, readjudicate the claims, to include entitlement to a TDIU rating.  If any benefit sought on appeal remains denied, the Veteran and his attorney should be provided a supplemental statement of the case and afforded an opportunity to respond.  The case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).  This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

_________________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2014).

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text: Roosevelt

text: Another

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text: power

text: plant

text: He

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text: in

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text: s

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text: his

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text: also

text: been

text: reflected

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text: the

text: naval

text: service

text: The

text: Veteran

text: is

text: an

text: individual

text: who

text: desires

text: isolation

text: from

text: others

text: He

text: has

text: been

text: observed

text: and

text: counseled

text: many

text: times

text: about

text: unproductive

text: use

text: of

text: his

text: time

text: when

text: he

text: should

text: have

text: been

text: working

text: on

text: his

text: qualifications

text: or

text: supply

text: duties

text: The

text: Veteran

text: does

text: not

text: take

text: pride

text: in

text: his

text: personal

text: appearance

text: when

text: in

text: uniform

text: and

text: has

text: to

text: be

text: constantly

text: prodded

text: to

text: ensure

text: he

text: meets

text: the

text: minimum

text: standard

text: of

text: dress

text: and

text: grooming

text: the

text: Veteran

text: has

text: a

text: good

text: knowledge

text: of

text: both

text: written

text: and

text: oral

text: English

text: and

text: he

text: supports

text: the

text: goals

text: of

text: Equal

text: Opportunity

text: He

text: is

text: not

text: recommended

text: for

text: advancement

text: or

text: for

text: reenlistment

text: It

text: further

text: reflects

text: as

text: follows

text: The

text: Veteran

text: was

text: prematurely

text: relieved

text: of

text: his

text: duties

text: as

text: Repair

text: Parts

text: Petty

text: Officer

text: due

text: to

text: his

text: lack

text: of

text: responsibility

text: The

text: Veteran

text: was

text: also

text: placed

text: on

text: a

text: remedial

text: study

text: program

text: to

text: allow

text: him

text: to

text: catchup

text: on

text: his

text: qualification

text: and

text: become

text: an

text: effective

text: member

text: of

text: the

text: division

text: The

text: Veteran

text: has

text: made

text: unsatisfactory

text: progress

text: in

text: completing

text: this

text: study

text: program

text: The

text: Veteran

text: has

text: consistently

text: proven

text: his

text: unreliability

text: by

text: arriving

text: late

text: for

text: duty

text: numerous

text: times

text: Although

text: he

text: has

text: received

text: Commanding

text: Officers

text: Non

text: Judicial

text: Punishment

text: for

text: these

text: infractions

text: and

text: has

text: been

text: counselled

text: he

text: continues

text: to

text: reject

text: authority

text: and

text: go

text: his

text: own

text: way

text: A

text: September

text: Department

text: of

text: the

text: Navy

text: memorandum

text: reflects

text: that

text: the

text: Veteran

text: was

text: recommended

text: for

text: disqualification

text: from

text: submarine

text: duty

text: It

text: notes

text: that

text: the

text: Veteran

text: was

text: absent

text: for

text: an

text: inspection

text: due

text: to

text: a

text: lack

text: of

text: concern

text: for

text: his

text: duties

text: A

text: few

text: days

text: later

text: he

text: was

text: late

text: for

text: quarters

text: several

text: times

text: and

text: missed

text: a

text: muster

text: The

text: report

text: reflects

text: that

text: the

text: Veteran

text: had

text: been

text: given

text: non

text: judicial

text: punishment

text: but

text: did

text: not

text: respond

text: positively

text: The

text: memorandum

text: reflects

text: that

text: the

text: Veteran

text: had

text: reported

text: to

text: the

text: command

text: in

text: September

text: from

text: Nuclear

text: Power

text: training

text: in

text: Idaho

text: Falls

text: after

text: a

text: three

text: month

text: assignment

text: His

text: performance

text: at

text: the

text: School

text: was

text: noted

text: to

text: have

text: been

text: inconsistent

text: lackadaisical

text: and

text: at

text: best

text: fair

text: Since

text: reporting

text: to

text: the

text: command

text: his

text: performance

text: declined

text: from

text: marginal

text: to

text: poor

text: It

text: reflects

text: that

text: the

text: Veteran

text: had

text: been

text: counseled

text: numerous

text: times

text: for

text: failure

text: to

text: complete

text: training

text: in

text: submarines

text: In

text: sum

text: the

text: service

text: personnel

text: records

text: reflect

text: that

text: the

text: Veteran

text: had

text: performance

text: and

text: attitude

text: problems

text: for

text: more

text: than

text: a

text: year

text: prior

text: to

text: discharge

text: and

text: prior

text: to

text: his

text: claimed

text: in

text: service

text: stressors

text: of

text: serving

text: aboard

text: a

text: submarine

text: Rather

text: than

text: reflect

text: that

text: the

text: Veteran

text: was

text: overworked

text: and

text: solely

text: responsible

text: for

text: certain

text: aspects

text: of

text: his

text: job

text: as

text: a

text: parts

text: repair

text: personnel

text: it

text: reflects

text: that

text: he

text: was

text: unproductive

text: and

text: needed

text: constant

text: supervision

text: The

text: Veteran

text: has

text: asserted

text: that

text: in

text: April

text: he

text: was

text: in

text: fear

text: for

text: his

text: life

text: due

text: to

text: a

text: drill

text: which

text: he

text: believed

text: was

text: an

text: actual

text: imminent

text: collision

text: with

text: an

text: enemy

text: vessel

text: A

text: Defense

text: Personal

text: Records

text: Information

text: Retrieval

text: System

text: report

text: in

text: response

text: to

text: a

text: request

text: for

text: a

text: deck

text: log

text: review

text: reflects

text: the

text: following

text: information

text: We

text: reviewed

text: the

text: March

text: May

text: deck

text: logs

text: for

text: the

text: USS

text: Theodore

text: Roosevelt

text: The

text: deck

text: logs

text: reveal

text: that

text: the

text: submarine

text: was

text: in

text: a

text: Guam

text: dry

text: dock

text: March

text: and

text: underway

text: for

text: Special

text: Operations

text: with

text: limited

text: deck

text: logs

text: entries

text: during

text: the

text: periods

text: March

text: April

text: May

text: and

text: May

text: The

text: deck

text: logs

text: do

text: not

text: document

text: a

text: no

text: notice

text: collision

text: alert

text: drill

text: during

text: a

text: combat

text: patrol

text: A

text: copy

text: of

text: the

text: ship

text: s

text: deck

text: log

text: sheet

text: reflects

text: that

text: on

text: May

text: three

text: weeks

text: after

text: the

text: Veteran

text: s

text: alleged

text: drill

text: the

text: Veteran

text: had

text: a

text: inch

text: by

text: th

text: inch

text: laceration

text: in

text: his

text: forehead

text: The

text: prognosis

text: was

text: good

text: and

text: the

text: treatment

text: was

text: a

text: bandage

text: and

text: return

text: to

text: duty

text: The

text: deck

text: log

text: is

text: negative

text: for

text: any

text: loss

text: of

text: consciousness

text: The

text: earliest

text: clinical

text: evidence

text: of

text: an

text: acquired

text: psychiatric

text: disability

text: is

text: more

text: than

text: twenty

text: years

text: after

text: separation

text: from

text: service

text: The

text: Board

text: finds

text: that

text: pursuant

text: to

text: the

text: September

text: Court

text: Order

text: granting

text: the

text: Joint

text: Motion

text: further

text: development

text: is

text: necessary

text: prior

text: to

text: adjudication

text: of

text: the

text: Veteran

text: s

text: claims

text: of

text: entitlement

text: to

text: service

text: connection

text: for

text: an

text: acquired

text: psychiatric

text: disorder

text: to

text: include

text: PTSD

text: and

text: major

text: depression

text: and

text: entitlement

text: to

text: a

text: TDIU

text: rating

text: The

text: clinical

text: evidence

text: of

text: record

text: including

text: the

text: Veteran

text: s

text: December

text: VA

text: examination

text: report

text: includes

text: findings

text: that

text: the

text: Veteran

text: s

text: depression

text: predated

text: service

text: An

text: earlier

text: November

text: VA

text: examination

text: report

text: concluded

text: that

text: there

text: does

text: not

text: appear

text: to

text: be

text: a

text: connection

text: between

text: his

text: current

text: psychological

text: difficulties

text: which

text: are

text: apparent

text: and

text: his

text: service

text: in

text: the

text: Navy

text: In

text: a

text: December

text: Remand

text: Argument

text: it

text: is

text: claimed

text: that

text: the

text: Veteran

text: s

text: stressors

text: are

text: sufficiently

text: traumatic

text: especially

text: considering

text: the

text: Veteran

text: s

text: already

text: delicate

text: psychiatric

text: constitution

text: It

text: is

text: further

text: claimed

text: that

text: in

text: service

text: events

text: aggravated

text: a

text: pre

text: service

text: psychiatric

text: condition

text: that

text: was

text: not

text: noted

text: on

text: the

text: Veteran

text: s

text: military

text: entrance

text: examination

text: Under

text: U

text: S

text: C

text: A

text: a

text: Veteran

text: is

text: entitled

text: to

text: a

text: presumption

text: of

text: soundness

text: on

text: entry

text: in

text: service

text: as

text: to

text: any

text: disability

text: not

text: noted

text: on

text: examination

text: for

text: enlistment

text: such

text: presumption

text: can

text: be

text: rebutted

text: only

text: by

text: clear

text: and

text: unmistakable

text: evidence

text: A

text: history

text: of

text: a

text: pre

text: service

text: injury

text: of

text: itself

text: is

text: not

text: a

text: notation

text: of

text: a

text: disability

text: on

text: service

text: entrance

text: and

text: does

text: not

text: suffice

text: to

text: rebut

text: the

text: presumption

text: of

text: soundness

text: in

text: the

text: face

text: of

text: a

text: normal

text: clinical

text: evaluation

text: on

text: service

text: entrance

text: In

text: addition

text: if

text: the

text: presumption

text: of

text: soundness

text: is

text: rebutted

text: the

text: Veteran

text: is

text: entitled

text: to

text: a

text: further

text: presumption

text: that

text: the

text: disability

text: not

text: noted

text: on

text: entry

text: in

text: but

text: manifested

text: during

text: service

text: was

text: aggravated

text: by

text: service

text: This

text: presumption

text: likewise

text: can

text: be

text: rebutted

text: only

text: by

text: clear

text: and

text: unmistakable

text: evidence

text: of

text: non

text: aggravation

text: The

text: presumption

text: of

text: soundness

text: applies

text: only

text: where

text: there

text: is

text: evidence

text: that

text: a

text: disease

text: or

text: injury

text: was

text: not

text: noted

text: upon

text: entry

text: into

text: service

text: manifested

text: or

text: was

text: incurred

text: in

text: service

text: Once

text: the

text: presumption

text: of

text: soundness

text: is

text: applied

text: if

text: the

text: Secretary

text: is

text: unable

text: to

text: rebut

text: the

text: presumption

text: the

text: disease

text: or

text: injury

text: that

text: manifested

text: in

text: service

text: is

text: deemed

text: incurred

text: in

text: service

text: such

text: that

text: the

text: second

text: element

text: of

text: service

text: connection

text: is

text: established

text: At

text: that

text: point

text: however

text: a

text: veteran

text: still

text: must

text: establish

text: that

text: he

text: has

text: a

text: current

text: disability

text: that

text: is

text: related

text: to

text: the

text: in

text: service

text: injury

text: or

text: disease

text: This

text: nexus

text: determination

text: is

text: based

text: on

text: a

text: weighing

text: of

text: the

text: evidence

text: by

text: the

text: preponderance

text: of

text: the

text: evidence

text: standard

text: with

text: the

text: benefit

text: of

text: the

text: doubt

text: given

text: to

text: the

text: veteran

text: It

text: is

text: error

text: to

text: apply

text: the

text: presumption

text: of

text: soundness

text: without

text: first

text: addressing

text: or

text: finding

text: whether

text: the

text: Veteran

text: s

text: psychiatric

text: disability

text: manifested

text: in

text: service

text: See

text: Gilbert

text: v

text: Shinseki

text: Vet

text: App

text: Because

text: the

text: Veteran

text: was

text: clinically

text: normal

text: on

text: May

text: psychiatric

text: evaluation

text: for

text: enlistment

text: he

text: is

text: entitled

text: to

text: a

text: presumption

text: of

text: soundness

text: on

text: entry

text: in

text: service

text: with

text: respect

text: to

text: a

text: psychiatric

text: disorder

text: if

text: a

text: psychiatric

text: disorder

text: was

text: manifest

text: during

text: service

text: An

text: examination

text: that

text: addresses

text: the

text: etiology

text: of

text: the

text: Veteran

text: s

text: current

text: psychiatric

text: disability

text: taking

text: into

text: account

text: the

text: applicable

text: legal

text: presumptions

text: is

text: necessary

text: The

text: December

text: Remand

text: Argument

text: notes

text: that

text: the

text: Veteran

text: s

text: treatment

text: records

text: from

text: D

text: S

text: LCSW

text: licensed

text: clinical

text: social

text: worker

text: have

text: not

text: been

text: obtained

text: and

text: provides

text: the

text: contact

text: information

text: for

text: this

text: clinician

text: Further

text: the

text: most

text: recent

text: VA

text: treatment

text: records

text: available

text: for

text: review

text: are

text: dated

text: in

text: October

text: VA

text: should

text: obtain

text: all

text: relevant

text: VA

text: and

text: private

text: treatment

text: records

text: which

text: could

text: potentially

text: be

text: helpful

text: in

text: resolving

text: the

text: Veteran

text: s

text: claim

text: See

text: Murphy

text: v

text: Derwinski

text: Vet

text: App

text: Bell

text: v

text: Derwinski

text: Vet

text: App

text: The

text: claim

text: of

text: entitlement

text: to

text: a

text: TDIU

text: rating

text: is

text: inextricably

text: intertwined

text: with

text: the

text: matter

text: of

text: service

text: connection

text: for

text: an

text: acquired

text: psychiatric

text: disability

text: to

text: include

text: PTSD

text: and

text: major

text: depression

text: and

text: consideration

text: of

text: that

text: issue

text: must

text: be

text: deferred

text: pending

text: resolution

text: of

text: the

text: service

text: connection

text: claim

text: Accordingly

text: the

text: case

text: is

text: REMANDED

text: for

text: the

text: following

text: action

text: Ask

text: the

text: appellant

text: to

text: identify

text: all

text: providers

text: of

text: mental

text: health

text: evaluation

text: or

text: treatment

text: he

text: has

text: received

text: to

text: include

text: prior

text: to

text: his

text: enlistment

text: and

text: after

text: his

text: separation

text: from

text: service

text: and

text: to

text: provide

text: all

text: authorizations

text: necessary

text: for

text: VA

text: to

text: obtain

text: any

text: private

text: records

text: of

text: such

text: evaluations

text: and

text: treatment

text: that

text: are

text: not

text: already

text: associated

text: with

text: the

text: record

text: The

text: attention

text: of

text: the

text: RO

text: is

text: specifically

text: directed

text: to

text: records

text: from

text: the

text: D

text: S

text: LCSW

text: All

text: updated

text: VA

text: treatment

text: records

text: should

text: also

text: be

text: obtained

text: Thereafter

text: the

text: Veteran

text: should

text: be

text: afforded

text: a

text: VA

text: psychiatric

text: examination

text: The

text: claims

text: folder

text: including

text: a

text: copy

text: of

text: this

text: remand

text: should

text: be

text: reviewed

text: by

text: the

text: examiner

text: and

text: the

text: examination

text: report

text: should

text: reflect

text: that

text: review

text: All

text: appropriate

text: tests

text: should

text: be

text: conducted

text: The

text: examiner

text: must

text: offer

text: opinions

text: to

text: the

text: following

text: a

text: Please

text: identify

text: by

text: medical

text: diagnosis

text: each

text: psychiatric

text: disability

text: entity

text: currently

text: found

text: including

text: whether

text: the

text: Veteran

text: has

text: depression

text: and

text: PTSD

text: Specifically

text: does

text: the

text: Veteran

text: meet

text: the

text: criteria

text: for

text: a

text: diagnosis

text: of

text: PTSD

text: including

text: based

text: on

text: fear

text: of

text: hostile

text: action

text: If

text: so

text: please

text: identify

text: the

text: stressor

text: and

text: symptoms

text: supporting

text: such

text: diagnosis

text: If

text: PTSD

text: is

text: not

text: diagnosed

text: indicate

text: clearly

text: what

text: symptom

text: s

text: needed

text: for

text: such

text: diagnosis

text: is

text: are

text: lacking

text: b

text: As

text: to

text: each

text: currently

text: diagnosed

text: acquired

text: psychiatric

text: disorder

text: please

text: offer

text: an

text: opinion

text: as

text: to

text: whether

text: that

text: disorder

text: was

text: manifest

text: during

text: service

text: In

text: doing

text: so

text: please

text: address

text: whether

text: any

text: of

text: the

text: performance

text: disciplinary

text: problems

text: which

text: the

text: Veteran

text: had

text: in

text: service

text: represented

text: symptoms

text: of

text: a

text: current

text: psychiatric

text: disability

text: c

text: If

text: and

text: only

text: if

text: a

text: current

text: psychiatric

text: disorder

text: was

text: manifest

text: during

text: service

text: please

text: offer

text: an

text: opinion

text: as

text: to

text: whether

text: is

text: it

text: clear

text: and

text: unmistakable

text: obvious

text: manifest

text: or

text: undebatable

text: that

text: the

text: acquired

text: psychiatric

text: disorder

text: that

text: was

text: present

text: during

text: service

text: existed

text: prior

text: to

text: active

text: military

text: service

text: If

text: it

text: is

text: determined

text: that

text: a

text: psychiatric

text: disorder

text: did

text: not

text: exist

text: prior

text: to

text: service

text: the

text: examiner

text: should

text: reconcile

text: such

text: finding

text: with

text: the

text: December

text: VA

text: examination

text: report

text: which

text: includes

text: the

text: finding

text: that

text: the

text: Veteran

text: s

text: depression

text: predated

text: service

text: d

text: If

text: the

text: acquired

text: psychiatric

text: disorder

text: existed

text: prior

text: to

text: active

text: military

text: service

text: is

text: it

text: also

text: clear

text: and

text: unmistakable

text: obvious

text: manifest

text: or

text: undebatable

text: that

text: such

text: disorder

text: was

text: not

text: aggravated

text: during

text: or

text: by

text: his

text: active

text: military

text: service

text: beyond

text: the

text: condition

text: s

text: natural

text: progression

text: Any

text: clear

text: and

text: unmistakable

text: obvious

text: manifest

text: or

text: undebatable

text: evidence

text: which

text: serves

text: as

text: the

text: basis

text: for

text: any

text: opinion

text: must

text: be

text: specifically

text: identified

text: e

text: If

text: a

text: current

text: psychiatric

text: disorder

text: was

text: not

text: present

text: during

text: service

text: then

text: is

text: it

text: at

text: least

text: as

text: likely

text: as

text: not

text: percent

text: or

text: greater

text: probability

text: that

text: the

text: current

text: psychiatric

text: disorder

text: is

text: otherwise

text: etiologically

text: related

text: to

text: the

text: Veteran

text: s

text: period

text: of

text: active

text: service

text: f

text: Do

text: the

text: diagnosed

text: psychiatric

text: disorders

text: including

text: PTSD

text: prevent

text: the

text: Veteran

text: from

text: securing

text: or

text: following

text: a

text: substantially

text: gainful

text: occupation

text: The

text: opinions

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Citation Nr: 1514004
Decision Date: 04/01/15    Archive Date: 04/09/15

DOCKET NO.  13-01 414	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah

THE ISSUES

1.  Entitlement to service connection for a psychiatric disorder.

2.  Whether there was clear and unmistakable error (CUE) in a September 1971 rating decision that denied the claim of service connection for chronic anxiety state.

3.  Entitlement to an initial rating in excess of 60 percent for coronary artery disease.

REPRESENTATION

Veteran represented by:	James McElfresh II, Agent

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

M. Taylor, Counsel

INTRODUCTION

The Veteran served on active duty from May 1968 to June 1969.  He also had Reserve service with active duty for training (ACDUTRA) from March 1964 to September 1964.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2011 and April 2012 rating decisions of the Salt Lake City, Utah, Regional Office (RO) of the Department of Veterans Affairs (VA).

The psychiatric disorder claim, including PTSD, has been previously denied.  Generally, new and material evidence is generally required to reopen a previously denied claim.  See 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a).  Here, at the least, there is a liberalizing law as to PTSD claims concerning "fear of hostile military or terrorist activity."  See 75 Fed. Reg. 39843-52 (July 13, 2010).  Thus, new and material evidence is not necessary to reach the merits of the claim.  See Spencer v. Brown, 4 Vet. App. 283 (1993).  Additionally, new and material evidence was received with the time to appeal a December 2010 rating decision in the form of a July 2011 private treatment record.  Thus, it is considered as if filed with the August 2010 claim pending at that time.  See 38 C.F.R. § 3.156(b).

For clarity, and although the April 2012 rating decision reflects that the agency of original jurisdiction (AOJ) adjudicated the issue of whether there was clear and unmistakable error in prior rating decisions denying service connection for PTSD and chronic anxiety state, the rating decision also addresses the merits of the claims of service connection for PTSD and chronic anxiety state.  The December 2012 statement of the case addresses service connection for a psychiatric disorder, to include PTSD and anxiety state.  Thereafter the Veteran filed a substantive appeal (VA Form 9).  To the extent that statement of the case addresses clear and unmistakable error in the prior rating decisions, the Board finds the statement of the case to be inadequate in that respect, as detailed in the remand section.

The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2013.

The electronic file shows that the Veteran perfected an appeal with respect to an initial rating in excess of 60 percent for coronary artery disease.  As such, the issue is reflected on the title page.

Testimony at the Board hearing raises the issue of whether there was CUE in a March 1993 rating decision that denied reopening the claim of service connection for chronic anxiety state (currently diagnosed as generalized anxiety disorder), and denied service connection for PTSD.  The AOJ has not adjudicated the issues and thus, the Board does not have jurisdiction over them.  As such, they are referred to the AOJ for appropriate action.

To the extent the Veteran alleged CUE in the December 2011 rating decision.  This is not permissible as the decision was not final.  In fact, in the decision below, the Board is granting the benefit sought for a claim pending prior to that decision.

The issue of entitlement to an initial rating in excess of 60 percent for coronary artery disease, along with the issues of where there was CUE in September 1971 and December 2011 rating decisions being remanded are addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.

FINDING OF FACT

PTSD and generalized anxiety disorder are related to service.

CONCLUSION OF LAW

The criteria for service connection for PTSD and generalized anxiety disorder have been met.  38 U.S.C.A. §§ 1110, 1111, 5107(b), 5121A (West 2014); 38 C.F.R. § 3.303, 3.304(f) (2014).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Criteria

Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.304 (2014).  Service connection may also be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection for PTSD requires medical evidence diagnosing the condition 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).

Effective July 13, 2010, VA amended the regulations for adjudicating disability compensation claims for PTSD in 38 C.F.R. § 3.304(f)(3) to liberalize the evidentiary standard for establishing the required in-service stressor in certain cases.  The current, liberalized version of § 3.304(f)(3) states that when the claimed in-service stressor is related to the veteran's "fear of hostile military or terrorist activity," the following shall be demonstrated to establish service connection for PTSD: 1) the claimed stressor is consistent with the places, types and circumstances of the veteran's service; 2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and 3) the veteran's symptoms are related to the claimed stressor.

This recent regulatory change has eliminated the requirement for submitting credible supporting evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity."  For purposes of 38 C.F.R. § 3.304(f)(3), "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; 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 psycho-physiological state of fear, helplessness or horror.

Generally, veterans are presumed to have entered service in sound condition as to their health.  38 U.S.C.A. § 1111 (West 2014)  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1).

The application of the presumption of soundness applies only when a disease or injury not noted upon entry to service manifests in service, and a question arises as to whether it pre-existed service.  Gilbert v. Shinseki, 26 Vet. App. 48 (2012).  Under such circumstances, VA is required to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service.  Id.

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

II. Analysis

The Veteran asserts entitlement to service connection for a psychiatric disorder.  His symptoms have been variously diagnosed but primarily as PTSD and generalized anxiety disorder.

Initially, and to the extent that PTSD has noted to have preexisted service and/or attributed to childhood trauma, to include on VA examination in December 1992 and November 2010, the Board notes that a January 1964 Reserve examination report reflects psychiatric examination was normal.  His neuropsychiatric status was assigned a profile of "1."  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)).  On the accompanying medical history, the Veteran denied having or having had frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort.

In addition, the August 1964 ACDUTRA separation examination report shows psychiatric examination was normal.  His neuropsychiatric status was assigned a profile of "1."  On the accompanying medical history he denied having or having had frequent trouble sleeping, frequent or terrifying nightmares, depression or excessive worry, and nervous trouble of any sort.

Furthermore, and although a March 1971 VA treatment record notes inpatient treatment in 1967 with long standing anxiety symptoms diagnosed as chronic anxiety state, the May 1968 active duty service entrance examination report shows psychiatric examination.  In addition, and although psychiatric impairment was noted, the June 1969 separation examination report shows psychiatric evaluation was normal, and his neuropsychiatric status was assigned a profile of "1."  In light of these contradictory findings, and having reviewed the record, the Board concludes that there is not clear and unmistakable evidence that a psychiatric disorder existed prior to service entrance.  Thus, the Veteran is presumed to have been in sound condition when entering service as to a psychiatric disorder.
Service records tend to show that at least psychiatric symptoms manifested during service.  Following his deployment to Vietnam in September 1968, he was accompanied by a recommendation for limited duty and deployment only to a location where psychiatric outpatient treatment was available.  In November 1968, he was noted to be more reclusive, more depressed, and getting worse.

After service, a December 1992 VA examination report reflecting a history of having come under small arms fire in a helicopter during service in Vietnam notes that the Veteran was transferred by helicopter on a weekly basis to psychiatric appointments.  Although the June 1969 separation examination report shows psychiatric evaluation was normal, on the accompanying medical history the Veteran indicated that he had depression or excessive worry, memory loss, and nervous trouble.

With respect to diagnosis, and although a November 2011 VA examination report reflects a diagnosis of somatoform disorder, a November 2010 VA examination report noting a history of the Veteran's camp having regularly come under mortar attack during service in Vietnam reflects the Veteran meets the criteria for a diagnosis of PTSD.

Consistent with the November 2010 VA examiner's opinion is the opinion of the July 2011 private physician who determined that the Veteran meets the criteria for not only a diagnosis of PTSD but also generalized anxiety disorder (GAD).  Both the July 2011 private report and the December 1992 VA examination report conclude that the most traumatic circumstance of the Veteran's Vietnam service was related to the Veteran not being permitted to carry a gun due to his psychiatric disorder.

The private report states that the Veteran felt terrified and feared for his life the entire time he was serving in Vietnam.  The physician noted that PTSD is most severe in individuals such as the Veteran who have an underlying psychiatric disorder such as GAD.  Based on this new July 2011 private treatment report, in conjunction with the other evidence of record, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD and generalized anxiety disorder related to service.

Resolving reasonable doubt in the Veteran's favor, the Board finds the evidence is in favor of the claim.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  Consequently, service connection for PTSD and generalized anxiety disorder is warranted.

ORDER

Service connection for PTSD and generalized anxiety disorder is granted.

REMAND

With respect to CUE, an April 2012 rating decision addresses CUE in a September 1971 rating decision.  The Veteran filed a notice of disagreement with the rating decision.  Subsequently, a statement of the case (SOC) was issued in December 2012 and supplemental statement of the case (SSOC) was issued in May 2013.  The SOC and SSOC pertain to the claim decided above.  Although there is a passing reference to CUE in the SOC, a reasonable person would not understand this was a SOC for that issue as the issue was not listed on the SOC (or the SSOC) and there is little to no discussion of that potential issue or identification of any prior decision being challenged.  Thus, the Board finds that a SOC should be issued as to whether there was CUE in a September 1971 rating decision that denied the claim of service connection for chronic anxiety state.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

As noted above, the Veteran seeks a higher initial rating for service-connected coronary artery disease.  He has not been afforded the Board hearing via videoconference requested in his substantive appeal.  As such, the matter is remanded to afford him a Board hearing.

Accordingly, this issue is REMANDED for the following actions:

1.  Issue a SOC whether there was CUE in a September 1971 rating decision that denied the claim of service connection for chronic anxiety state.  If, and only if, the Veteran files a timely substantive appeal should this issue be returned to the Board.

2.  Also, Schedule the Veteran for a Board hearing via videoconference with respect to the issue of entitlement to an initial rating in excess of 60 percent for coronary artery disease.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

______________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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text: discharge

text: when

text: all

text: the

text: evidence

text: including

text: that

text: pertinent

text: to

text: service

text: establishes

text: that

text: the

text: disease

text: was

text: incurred

text: in

text: service

text: C

text: F

text: R

text: d

text: Service

text: connection

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text: PTSD

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text: medical

text: evidence

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text: the

text: condition

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text: accordance

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text: C

text: F

text: R

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text: a

text: link

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text: medical

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text: symptoms

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text: an

text: in

text: service

text: stressor

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text: credible

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text: claimed

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text: C

text: F

text: R

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text: Effective

text: July

text: VA

text: amended

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text: regulations

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text: disability

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text: PTSD

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text: C

text: F

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text: to

text: liberalize

text: the

text: evidentiary

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text: certain

text: cases

text: The

text: current

text: liberalized

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text: states

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text: when

text: the

text: claimed

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text: service

text: stressor

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text: related

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text: the

text: veteran

text: s

text: fear

text: of

text: hostile

text: military

text: or

text: terrorist

text: activity

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text: following

text: shall

text: be

text: demonstrated

text: to

text: establish

text: service

text: connection

text: for

text: PTSD

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text: claimed

text: stressor

text: is

text: consistent

text: with

text: the

text: places

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text: circumstances

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text: the

text: veteran

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text: service

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text: VA

text: psychiatrist

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text: psychologist

text: or

text: contract

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text: claimed

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text: adequate

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text: support

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text: diagnosis

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text: PTSD

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text: symptoms

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text: recent

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text: veteran

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text: veteran

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text: witnessed

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text: confronted

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text: an

text: event

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text: circumstance

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text: involved

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text: serious

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text: threat

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text: physical

text: integrity

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text: veteran

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text: others

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text: veteran

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text: psychological

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text: physiological

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text: fear

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text: horror

text: Generally

text: veterans

text: are

text: presumed

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text: health

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text: presumption

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text: Gilbert

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text: clear

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text: a

text: disease

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text: was

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text: disability

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text: evidence

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text: claim

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text: relative

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text: the

text: Veteran

text: prevailing

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text: either

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text: whether

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text: preponderance

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text: evidence

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text: against

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text: entitlement

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text: a

text: psychiatric

text: disorder

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text: symptoms

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text: been

text: variously

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text: but

text: primarily

text: as

text: PTSD

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text: generalized

text: anxiety

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text: and

text: to

text: the

text: extent

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text: PTSD

text: has

text: noted

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text: have

text: preexisted

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text: or

text: attributed

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text: childhood

text: trauma

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text: include

text: on

text: VA

text: examination

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text: December

text: and

text: November

text: the

text: Board

text: notes

text: that

text: a

text: January

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text: examination

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text: psychiatric

text: examination

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text: normal

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text: neuropsychiatric

text: status

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text: profile

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text: See

text: Odiorne

text: v

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text: Vet

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text: the

text: PULHES

text: profile

text: reflects

text: the

text: overall

text: physical

text: and

text: psychiatric

text: condition

text: of

text: the

text: Veteran

text: on

text: a

text: scale

text: of

text: high

text: level

text: of

text: fitness

text: to

text: a

text: medical

text: condition

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text: physical

text: defect

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text: is

text: below

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text: level

text: of

text: medical

text: fitness

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text: retention

text: in

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text: military

text: service

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text: the

text: accompanying

text: medical

text: history

text: the

text: Veteran

text: denied

text: having

text: or

text: having

text: had

text: frequent

text: trouble

text: sleeping

text: frequent

text: or

text: terrifying

text: nightmares

text: depression

text: or

text: excessive

text: worry

text: and

text: nervous

text: trouble

text: of

text: any

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text: addition

text: the

text: August

text: ACDUTRA

text: separation

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text: psychiatric

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text: normal

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text: neuropsychiatric

text: status

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text: assigned

text: a

text: profile

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text: the

text: accompanying

text: medical

text: history

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text: denied

text: having

text: or

text: having

text: had

text: frequent

text: trouble

text: sleeping

text: frequent

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text: terrifying

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text: depression

text: or

text: excessive

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text: nervous

text: trouble

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text: any

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text: and

text: although

text: a

text: March

text: VA

text: treatment

text: record

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text: inpatient

text: treatment

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text: with

text: long

text: standing

text: anxiety

text: symptoms

text: diagnosed

text: as

text: chronic

text: anxiety

text: state

text: the

text: May

text: active

text: duty

text: service

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text: examination

text: report

text: shows

text: psychiatric

text: examination

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text: addition

text: and

text: although

text: psychiatric

text: impairment

text: was

text: noted

text: the

text: June

text: separation

text: examination

text: report

text: shows

text: psychiatric

text: evaluation

text: was

text: normal

text: and

text: his

text: neuropsychiatric

text: status

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text: assigned

text: a

text: profile

text: of

text: In

text: light

text: of

text: these

text: contradictory

text: findings

text: and

text: having

text: reviewed

text: the

text: record

text: the

text: Board

text: concludes

text: that

text: there

text: is

text: not

text: clear

text: and

text: unmistakable

text: evidence

text: that

text: a

text: psychiatric

text: disorder

text: existed

text: prior

text: to

text: service

text: entrance

text: Thus

text: the

text: Veteran

text: is

text: presumed

text: to

text: have

text: been

text: in

text: sound

text: condition

text: when

text: entering

text: service

text: as

text: to

text: a

text: psychiatric

text: disorder

text: Service

text: records

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text: to

text: show

text: that

text: at

text: least

text: psychiatric

text: symptoms

text: manifested

text: during

text: service

text: Following

text: his

text: deployment

text: to

text: Vietnam

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text: September

text: he

text: was

text: accompanied

text: by

text: a

text: recommendation

text: for

text: limited

text: duty

text: and

text: deployment

text: only

text: to

text: a

text: location

text: where

text: psychiatric

text: outpatient

text: treatment

text: was

text: available

text: In

text: November

text: he

text: was

text: noted

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text: be

text: more

text: reclusive

text: more

text: depressed

text: and

text: getting

text: worse

text: After

text: service

text: a

text: December

text: VA

text: examination

text: report

text: reflecting

text: a

text: history

text: of

text: having

text: come

text: under

text: small

text: arms

text: fire

text: in

text: a

text: helicopter

text: during

text: service

text: in

text: Vietnam

text: notes

text: that

text: the

text: Veteran

text: was

text: transferred

text: by

text: helicopter

text: on

text: a

text: weekly

text: basis

text: to

text: psychiatric

text: appointments

text: Although

text: the

text: June

text: separation

text: examination

text: report

text: shows

text: psychiatric

text: evaluation

text: was

text: normal

text: on

text: the

text: accompanying

text: medical

text: history

text: the

text: Veteran

text: indicated

text: that

text: he

text: had

text: depression

text: or

text: excessive

text: worry

text: memory

text: loss

text: and

text: nervous

text: trouble

text: With

text: respect

text: to

text: diagnosis

text: and

text: although

text: a

text: November

text: VA

text: examination

text: report

text: reflects

text: a

text: diagnosis

text: of

text: somatoform

text: disorder

text: a

text: November

text: VA

text: examination

text: report

text: noting

text: a

text: history

text: of

text: the

text: Veteran

text: s

text: camp

text: having

text: regularly

text: come

text: under

text: mortar

text: attack

text: during

text: service

text: in

text: Vietnam

text: reflects

text: the

text: Veteran

text: meets

text: the

text: criteria

text: for

text: a

text: diagnosis

text: of

text: PTSD

text: Consistent

text: with

text: the

text: November

text: VA

text: examiner

text: s

text: opinion

text: is

text: the

text: opinion

text: of

text: the

text: July

text: private

text: physician

text: who

text: determined

text: that

text: the

text: Veteran

text: meets

text: the

text: criteria

text: for

text: not

text: only

text: a

text: diagnosis

text: of

text: PTSD

text: but

text: also

text: generalized

text: anxiety

text: disorder

text: GAD

text: Both

text: the

text: July

text: private

text: report

text: and

text: the

text: December

text: VA

text: examination

text: report

text: conclude

text: that

text: the

text: most

text: traumatic

text: circumstance

text: of

text: the

text: Veteran

text: s

text: Vietnam

text: service

text: was

text: related

text: to

text: the

text: Veteran

text: not

text: being

text: permitted

text: to

text: carry

text: a

text: gun

text: due

text: to

text: his

text: psychiatric

text: disorder

text: The

text: private

text: report

text: states

text: that

text: the

text: Veteran

text: felt

text: terrified

text: and

text: feared

text: for

text: his

text: life

text: the

text: entire

text: time

text: he

text: was

text: serving

text: in

text: Vietnam

text: The

text: physician

text: noted

text: that

text: PTSD

text: is

text: most

text: severe

text: in

text: individuals

text: such

text: as

text: the

text: Veteran

text: who

text: have

text: an

text: underlying

text: psychiatric

text: disorder

text: such

text: as

text: GAD

text: Based

text: on

text: this

text: new

text: July

text: private

text: treatment

text: report

text: in

text: conjunction

text: with

text: the

text: other

text: evidence

text: of

text: record

text: the

text: Board

text: finds

text: that

text: the

text: evidence

text: is

text: at

text: least

text: in

text: equipoise

text: as

text: to

text: whether

text: the

text: Veteran

text: has

text: PTSD

text: and

text: generalized

text: anxiety

text: disorder

text: related

text: to

text: service

text: Resolving

text: reasonable

text: doubt

text: in

text: the

text: Veteran

text: s

text: favor

text: the

text: Board

text: finds

text: the

text: evidence

text: is

text: in

text: favor

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text: the

text: claim

text: See

text: U

text: S

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text: b

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text: Consequently

text: service

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text: PTSD

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text: generalized

text: anxiety

text: disorder

text: is

text: warranted

text: ORDER

text: Service

text: connection

text: for

text: PTSD

text: and

text: generalized

text: anxiety

text: disorder

text: is

text: granted

text: REMAND

text: With

text: respect

text: to

text: CUE

text: an

text: April

text: rating

text: decision

text: addresses

text: CUE

text: in

text: a

text: September

text: rating

text: decision

text: The

text: Veteran

text: filed

text: a

text: notice

text: of

text: disagreement

text: with

text: the

text: rating

text: decision

text: Subsequently

text: a

text: statement

text: of

text: the

text: case

text: SOC

text: was

text: issued

text: in

text: December

text: and

text: supplemental

text: statement

text: of

text: the

text: case

text: SSOC

text: was

text: issued

text: in

text: May

text: The

text: SOC

text: and

text: SSOC

text: pertain

text: to

text: the

text: claim

text: decided

text: above

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text: there

text: is

text: a

text: passing

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text: to

text: CUE

text: in

text: the

text: SOC

text: a

text: reasonable

text: person

text: would

text: not

text: understand

text: this

text: was

text: a

text: SOC

text: for

text: that

text: issue

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text: the

text: issue

text: was

text: not

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text: on

text: the

text: SOC

text: or

text: the

text: SSOC

text: and

text: there

text: is

text: little

text: to

text: no

text: discussion

text: of

text: that

text: potential

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text: identification

text: of

text: any

text: prior

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text: challenged

text: Thus

text: the

text: Board

text: finds

text: that

text: a

text: SOC

text: should

text: be

text: issued

text: as

text: to

text: whether

text: there

text: was

text: CUE

text: in

text: a

text: September

text: rating

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text: denied

text: the

text: claim

text: of

text: service

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text: for

text: chronic

text: anxiety

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text: Manlincon

text: v

text: West

text: Vet

text: App

text: As

text: noted

text: above

text: the

text: Veteran

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text: a

text: higher

text: initial

text: rating

text: for

text: service

text: connected

text: coronary

text: artery

text: disease

text: He

text: has

text: not

text: been

text: afforded

text: the

text: Board

text: hearing

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text: videoconference

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text: his

text: substantive

text: appeal

text: As

text: such

text: the

text: matter

text: is

text: remanded

text: to

text: afford

text: him

text: a

text: Board

text: hearing

text: Accordingly

text: this

text: issue

text: is

text: REMANDED

text: for

text: the

text: following

text: actions

text: Issue

text: a

text: SOC

text: whether

text: there

text: was

text: CUE

text: in

text: a

text: September

text: rating

text: decision

text: that

text: denied

text: the

text: claim

text: of

text: service

text: connection

text: for

text: chronic

text: anxiety

text: state

text: If

text: and

text: only

text: if

text: the

text: Veteran

text: files

text: a

text: timely

text: substantive

text: appeal

text: should

text: this

text: issue

text: be

text: returned

text: to

text: the

text: Board

text: Also

text: Schedule

text: the

text: Veteran

text: for

text: a

text: Board

text: hearing

text: via

text: videoconference

text: with

text: respect

text: to

text: the

text: issue

text: of

text: entitlement

text: to

text: an

text: initial

text: rating

text: in

text: excess

text: of

text: percent

text: for

text: coronary

text: artery

text: disease

text: The

text: Veteran

text: has

text: the

text: right

text: to

text: submit

text: additional

text: evidence

text: and

text: argument

text: on

text: the

text: matter

text: the

text: Board

text: has

text: remanded

text: Kutscherousky

text: v

text: West

text: Vet

text: App

text: These

text: claims

text: must

text: be

text: afforded

text: expeditious

text: treatment

text: The

text: law

text: requires

text: that

text: all

text: claims

text: that

text: are

text: remanded

text: by

text: the

text: Board

text: or

text: by

text: the

text: United

text: States

text: Court

text: of

text: Appeals

text: for

text: Veterans

text: Claims

text: for

text: additional

text: development

text: or

text: other

text: appropriate

text: action

text: must

text: be

text: handled

text: in

text: an

text: expeditious

text: manner

text: See

text: U

text: S

text: C

text: A

text: B

text: West

text: RYAN

text: T

text: KESSEL

text: Veterans

text: Law

text: Judge

text: Board

text: of

text: Veterans

text: Appeals

text: Department

text: of

text: Veterans

text: Affairs