Citation Nr: 0810301 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-24 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to service connection for an acquired psychiatric disorder to include a currently diagnosed anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Appellant & Spouse ATTORNEY FOR THE BOARD L. Crohe, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from July 1966 to July 1969. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision by the Boise Regional Office (RO) of the Department of Veterans Affairs (VA). In September 2005, the veteran and his spouse testified at a Decision Review Officer (DRO) hearing; a transcript of that hearing is of record. In April 2007, the veteran and his representative submitted additional evidence in support of his claim along with a written waiver to allow the Board to consider the additional evidence and argument without initial RO consideration. Therefore, the Board may proceed with the appeal. 38 C.F.R. § 20.1304(c). FINDINGS OF FACT An acquired psychiatric disorder, to include a currently diagnosed anxiety disorder is shown to be related to service. CONCLUSION OF LAW An acquired psychiatric disorder, to include a currently diagnosed anxiety disorder, was incurred in service. 38 U.S.C.A. §§ 1110, 1131, (West 2002 & Supp. 2006); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has substantially satisfied the duty to notice and assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). To the extent that there may be any deficiency of notice or assistance, there is no prejudice to the appellant given the favorable nature of the Board's decision. Factual Background Service medical records including a June 1966 entrance examination and a June 1969 separation examination are negative for any complaints, treatment, or findings relating to a psychiatric disorder. 1997 to 2004 treatment records from the Boise VA Medical Center (VAMC) showed treatment in February 2004 for depression and panic disorder. The veteran reported complaints of excessive anxiety and panic attacks that interfered with his ability to function. According to the veteran's wife, the veteran had dramatically changed and had been traumatized by a series of events that occurred during his service. A May 2004 psychiatric evaluation reported a history of the veteran's in-service experiences and included an assessment of probable PTSD with recurrent depression. A June 2004 mental health clinic included a diagnosis of PTSD with depression. A July 2004 record also included a diagnosis of anxiety. The veteran was hospitalized from August 30 to September 1, 2004 with complaints of reliving traumatic experiences of the past and the present. In November 2004, the veteran brought in an article that showed that his friend, J. H., died in-service and the veteran ruminated about this experience, which lived on day to day. Subsequent treatment records showed continuous treatment for an acquired psychiatric disorder. In a May 2004 statement from the veteran's wife, she indicated that the veteran had fundamentally changed while he was in the Marines and that his experiences had adversely affected him. She reported that he was saddened by the loss of his close friends W. S. I. and J. W. R who were killed in Vietnam. In several statements and during his September 2005 DRO hearing, the veteran reported various in-service stressful events, specifically including, but not limited to, an incident in which his close friend, J. H., was shot and killed while playing a game of quick draw. The veteran was stationed with J. H. at Barbers Point, Hawaii at the time the incident occurred. Another incident occurred when he was sent to secure an area that involved a rape. He saw the victim screaming and yelling, and was unable to calm down. Also two of his close high school friends (W. S. I. and J. W. R.) enlisted in the Marines and were killed in Vietnam. The veteran had indicated that he felt bad or guilty for not being sent to Vietnam. A July 2004 Client Assessment Form, by Dr. D. T., included a diagnosis of adjustment disorder with anxiety and nervousness. August to September 2004 treatment records from Dr. P. M. showed treatment for major depressive disorder possibly from post traumatic experiences. In a September 2005 letter, Dr. P. M. indicated that he worked periodically with the veteran to assist him in coping with any emotional concerns. The veteran's condition was PTSD accompanied by depression. In November 2004, the veteran submitted a newspaper article referencing the death of his friend J. H. who was shot and killed by another Marine when they engaged in a game of quick draw while guarding a security area at Barbers Point Naval Air Station. On June 2005 VA examination, it was noted that the claims file was reviewed. After mental status examination, the examiner concluded that the veteran's military traumas indicated that although very stressful, did not qualify as PTSD stressors under DSM-IV criteria. Regarding, the death of his friend J. H., the veteran was in another guard tower at the time, did not witness the shooting and was told about the event later that night. The examiner reasoned that to qualify as a DSM-IV stressor, the veteran must have actually witnessed the event. This reasoning also applied to the veteran learning about his other friends who were killed in Vietnam. Therefore, a diagnosis of PTSD related to military service was not supported by the available information. 2005 to 2006 Boise VAMC treatment records showed continued treatment for chronic anxiety, PTSD, and depression and noted that the veteran had recurrent thoughts of his own military experiences. In May 2006, the RO sent the Marine Corp University Archive (MCUA) several requests for research of records in their possession for the purpose of verifying in-service stressors claimed by a veteran. It was noted that unit records that MCUA provides through Virtual VA had been reviewed and no stressors were found. A description of each stressful event was provided to assist in the research. In May 2006 correspondence, the Head of the Archives and Special Collections Branch of the Library of the Marine Corps found that no further information other than those already available through Virtual VA was available. In December 2005, the veteran's representative verified the deaths of the veteran's friends, W. S. I. and J. W. R. who were killed while serving in Vietnam. The record includes the lengthy report of a July 2006 VA examination, in which it was noted that the claims file was reviewed. The examiner noted that the veteran claimed 14 different stressors of which three had been verified. The three verified stressors included the death of the veteran's friend J. H. in October 1967 at Barbers Point, Hawaii and the death of his two friends (W. S. I. and J. W. R.) who were killed in Vietnam in January 1968. The examiner noted that the veteran did not witness the deaths, but was informed each event at later dates. The examiner then summarized the medical records and the content of the DRO hearing. After mental status examination, the veteran was diagnosed with an anxiety disorder, not otherwise specified (NOS). The examiner opined that she felt that the veteran's anxiety was probably present to some degree before the military, but more likely than not was exacerbated by his military service, and then exacerbated again by post-military traumas. The examiner found that although the veteran met many of the required criteria for PTSD he did not meet all of them. However, he met the criteria for the diagnosis of anxiety disorder NOS, since the criteria were less stringent. The examiner clarified that PTSD may result not only from experiencing or directly witnessing a trauma, but also through being confronted with trauma (for example, being told about the deaths of his friends, as verified). However, the examiner stated that the veteran failed to meet the criteria regarding his emotional response in that he did not experience intense fear, helplessness, or horror in reaction to the news of the deaths. His reaction was one of expectable sadness. It was noted that the veteran did have an intense emotional reaction with one of his unverified stressors (witnessing the aftermath of a rape) and some of his post-military stressors. Although he had some re- experiencing symptoms related to his verified stressors, he did not have difficulty discussing his stressors. Although he met the criteria for hyperarousal, it was noted that the symptoms could be due to a variety of psychiatric disorders, and weren't exclusive to PTSD. The examiner concluded that considering only the three verified stressors, the veteran did not meet the full criteria for PTSD, but did meet the criteria for a diagnosis of anxiety disorder, NOS. The examiner opined that the veteran's symptoms were partly due to verified stressors, and partly due to a number of other traumas, including purported military traumas and post- military traumas. The examiner commented that if the rape incident was later verified, the veteran would qualify for a revised diagnosis of PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. 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 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 VA regulations; 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans). If an injury or disease was alleged to have been incurred or aggravated in combat, such incurrence or aggravation may be shown by satisfactory lay evidence, consistent with the circumstances, conditions, or hardships of combat, even if there is no official record of the incident. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). However, the provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection; instead, they ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected. See Caluza v. Brown, 7 Vet. App. 498 (1995). That is, the statute provides a basis for determining whether a particular injury was incurred in service but not a basis to link the injury etiologically to the current condition. See Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Although three of the veteran's claimed in-service stressors have been verified, the Board finds that service connection for PTSD is not warranted because there is no diagnosis of PTSD that meets all of the diagnostic criteria found in VA regulations. See generally 38 C.F.R. §§ 3.304(f), 4.125(a). The Board notes that several medical records included a diagnosis of PTSD; however, the diagnoses were not based on any of the three verified in-service stressors. Although a November 2004 VA treatment record noted the death of the veteran's friend, J. H., the record did not indicate that such an event caused the veteran to have PTSD. Also, on July 2006 VA examination, the examiner found, after a complete review of the claims file, that the veteran did not have PTSD based on the three verified in-service stressor events. Although service connection for PTSD is not warranted, the Board finds that the competent medical evidence clearly establishes that the veteran has a currently diagnosed anxiety disorder that is related to his service. July 2006 VA examination shows that the veteran has an anxiety disorder that is related to verified traumatic experiences in service. 38 C.F.R. § 3.303(d). There is no competent medical evidence to the contrary. Although the VA examiner indicates that the veteran's anxiety may have pre-existed service and has been exacerbated by his military service, a June 1966 entrance examination is negative for any psychiatric disabilities. Thus, a psychiatric disorder, including anxiety, was not "noted" when he entered active duty, and the presumption of soundness applies. Accordingly, service connection for an acquired psychiatric disorder, to include a currently diagnosed anxiety disorder is warranted. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.304. ORDER Service connection for an acquired psychiatric disorder, to include a currently diagnosed anxiety disorder, is granted. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs