Citation Nr: 0831621 Decision Date: 09/16/08 Archive Date: 09/22/08 DOCKET NO. 07-01 429 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include post traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Heneks, Associate Counsel INTRODUCTION The veteran served on active duty from July 1972 to June 1976. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a July 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the benefit sought on appeal. In June 2008, the veteran presented testimony at a personal hearing conducted at the Fargo RO before the undersigned Veterans Law Judge (VLJ). A transcript of this personal hearing is in the veteran's claims folder. The veteran seeks service connection for PTSD and depression. As will be discussed below, the Board is granting service connection for PTSD and dysthymic disorder. Consequently, the issue has been recharacterized as reflected above to more accurately reflect the veteran's claimed symptomatology. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran's alleged PTSD stressors are consistent with the circumstances of his duties as a corpsman. 3. PTSD and dysthymic disorder have been shown to be casually or etiologically related to his service. CONCLUSION OF LAW Service connection is warranted for PTSD and dysthymic disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend that the veteran's PTSD and depression are related to his service. Because service connection for PTSD and dysthymic disorder is being granted, there is no need to review whether VA's statutory duties to notify and assist are fully satisfied as any error would be non-prejudicial. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007). LAW AND ANALYSIS Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). In sum, in order to establish direct service connection for a disorder, there must be (1) medical evidence of the current disability; (2) medical, or in certain circumstances, lay evidence of the in-service incurrence of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the current disability. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for PTSD requires: (1) medical evidence diagnosing the condition, (2) credible supporting evidence that the claimed, in-service stressor actually occurred, and (3) a link, established by medical evidence, between current symptomatology and the claimed, in-service stressor. In adjudicating a claim of entitlement to service connection for PTSD, as with all other claims, the Board is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.304(f); see also Hayes v. Brown, 5 Vet. App. 60, 66 (1993). The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy" or was a POW as established by official records, including recognized military combat citations or other supportive evidence. If the VA determines that the veteran engaged in combat with the enemy or was a POW and the alleged stressor is combat or POW related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with the circumstances, conditions or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70 (1994); Zarycki v. Brown, 6 Vet. App. 91 (1993). If, however, VA determines that the veteran did not engage in combat with the enemy or was a POW, or that the veteran engaged in combat with the enemy or was a POW, but the alleged stressor is not combat or POW related, the veteran's lay testimony by itself, is insufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's statements or testimony. Cohen v. Brown, 10 Vet. App. 128 (1997). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the veteran is entitled to service connection for PTSD and dysthymic disorder. At the outset, the Board finds that the veteran did not engage in combat with the enemy during active service nor did he serve in Vietnam in country. The veteran's duties as verified by his DD Form 214 have not been recognized as combat-related. In this regard, the veteran's DD Form 214 lists his military occupational specialty as HM- 0000, which corresponds to corpsman. Further, his DD Form 214 did not show that he received any awards or decorations indicative of combat service, such a Bronze Star with V Device or Purple Heart. The Board does acknowledge that the veteran has been awarded the National Defense Service Medal; however, this award is not indicative of combat. As such, the Board finds that the veteran is not shown to have engaged in combat with the enemy. As the record contains no evidence that the veteran engaged in combat with the enemy during active service, nor is there evidence that he was a POW, there must be credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection. See Cohen v. Brown, 10 Vet. App. 128 (1997). The veteran contends that he developed PTSD symptoms as a result of stressful incidents related to his duties as a corpsman. In this regard, the veteran has indicated that continuously being exposed to wounded, injured, and sick people led to his PTSD. A few of the veteran's alleged stressors were preparing dead bodies to be sent home including that of a murder victim and a decapitated person, observing autopsies, cleaning up his injured best friend, reattaching a severed finger, and suturing a head injury. The Board notes that other than the veteran's statements and testimony regarding the occurrence of the aforementioned stressors, the claims folder does not contain any additional evidence of the events' actual happening. After receiving the veteran's stressors, a July 2007 JSRRC response indicated that the alleged stressors were not the type of stressors that JSRRC will be able to verify. Additionally, JSRRC stated that it was unable to verify that the veteran's alleged stressor of processing the body of a murder victim. Further, a December 2007 CURR response reflected that after reviewing the command history for the US Naval Hospital in Taipei where the veteran was stationed, there was no documentation that the veteran picked up a murdered civilian from a merchant ship as he described. However, it was noted that as a hospital corpsman, it was conceivable that he saw or picked up a dead body sometime during his time with the Navy. Although none of the veteran's alleged stressors have been officially verified, the Board finds that his stressors are consistent with the circumstances of the veteran's service and his duties as a corpsman. 38 U.S.C.A. § 1154(a). The Board finds it significant that in describing how the first PTSD criterion was met, the July 2007 VA examiner specifically mentioned exposure to a great deal of death, being present during the processing of dead bodies, and cleaning up a friend as examples of exposure to a wide range of significant medical traumas which were considered stressors for PTSD. Moreover, the Board finds the veteran's account of these stressors to be credible. Therefore, because these alleged stressors are consistent with the circumstances of the veteran's duties as a corpsman, the Board finds that there is credible supporting evidence of record that the alleged stressors actually occurred in order to warrant service connection. See Cohen v. Brown, 10 Vet. App. 128 (1997). The evidence is conflicting regarding whether the veteran has PTSD. However, as discussed above, the law is clear that it is the Board's duty to assess the credibility and probative value of evidence, and provided that it offers an adequate statement of reasons and bases, the Board may favor one medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wray v. Brown, 7 Vet. App. 488 (1995) (the Board may adopt a particular independent medical expert's opinion for its reasons and bases where the expert has fairly considered the material evidence of record). The Board, of course, is not free to reject medical evidence on the basis of its own unsubstantiated medical conclusions. Flash v. Brown, 8 Vet. App. 332 (1995). The value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). The evidence reflected that the veteran has a PTSD diagnosis that has been related to his alleged stressors. In this regard, a February 2005 private treatment record from C.B.P.S. had diagnoses of PTSD and dysthymic disorder and the veteran relayed the stressors of seeing violence and injured and dead bodies as a corpsman. The July 2007 VA examiner concluded that the veteran had a pattern of anxiety (PTSD) and depressive symptomatology which was caused by or the result of experiences during his service as a Navy corpsman. Additionally, the July 2007 examiner also provided a diagnosis of dysthymic disorder and opined that a coexisting pattern of depressive symptoms was found in addition to PTSD which seemed a product of the veteran's military experiences and the onset of anxiety (PTSD). The examiner stated that it was not possible to separate the effects of the depression and anxiety without resorting to speculation but the two conditions developed out of his military experiences and were interactive. However, private treatment records dated from the 1990s to the present indicated that the veteran had depression related to relationship issues. Additionally, the June 2005 VA examiner did not find that the veteran met the criteria for a PTSD diagnosis and also concluded that his diagnosis of depressive disorder not otherwise specified was less than likely connected with his military experience. The Board notes that the diagnoses in the February 2005 private treatment record from C.B.P.S. were based on an interview with the veteran, review of the medical records, and clinical testing. Importantly, both the June 2005 and July 2007 VA examinations were based on a thorough review of the claims file and examination of the veteran. Both were supported by reasoning and clinical evidence. As such, they are all considered probative medical evidence. In deciding whether a claimed benefit is warranted, VA must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(b). In this case, the Board finds that the evidence is at least in equipoise and therefore, after resolving all reasonable doubt in favor of the veteran, will grant the claim on appeal. In sum, the Board finds that the alleged stressors are consistent with the circumstances of the veteran's duties as a corpsman. See Cohen v. Brown, 10 Vet. App. 128 (1997); 38 U.S.C.A. § 1154(a). Thus, there is persuasive medical evidence indicating that the veteran has PTSD with depressive symptomatology that is related to his service and alleged stressors. Therefore, the Board will grant the veteran's claims for service connection for PTSD and dysthymic disorder. ORDER Entitlement to service connection for PTSD and dysthymic disorder is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs