Citation Nr: 0812892 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-25 910 ) 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 posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Rory E. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from February 1966 to April 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota, which denied the benefits sought on appeal. The veteran appealed that decision to BVA, and the case was referred to the Board for appellate review. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. The veteran has been shown to have PTSD that is causally or etiologically related to a verified in-service stressor. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran and his representative contend that the veteran's PTSD was caused by events he experienced in Vietnam. Because the claim of service connection for PTSD on appeal 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. 2006); see also 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2006). Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in 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) a medical diagnosis of the disorder, (2) credible supporting evidence that the claimed in-service stressor actually occurred, and (3) a link, as established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). In adjudicating a claim of entitlement to service connection for PTSD, 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(b); 38 C.F.R. § 3.304(f) (2004); 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, the 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 considering the evidence of record under the laws and regulations as set forth above, the Board finds that the evidence is in relative equipoise as to whether the veteran has PTSD related to service. Resolving the equipoise rule in the veteran's favor, the Board concludes that the veteran is entitled to service connection for PTSD. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. The Board notes that the RO has conceded that the veteran has a verified in-service stressor. In particular, in the veteran's December 2003 statement in support of claim and his January 2004 PTSD questionnaire, the veteran contended that he witnessed the shooting of his friend, L.B., during service in Vietnam in 1968, and that the fellow serviceman later died of that wound. In February 2004, the U.S. National Archives & Records Administration verified that L.B. died in May 1968 in the Republic of Vietnam by accidental self-destruction. The May 2005 statement of the case acknowledges the verification of this stressor. As such, the remaining question is the medical question of whether the veteran has been diagnosed as having PTSD, and if so, whether that diagnosis is related to the veteran's verified in-service stressor. On this point, there is conflicting evidence. The veteran's primary medical provider referred him to the Veterans Affairs Medical Center (VAMC) for a PTSD assessment, which was conducted in December 2003. A clinical nurse specialist performed an extensive evaluation, in which she indicated that she had reviewed the veteran's mental health assessment from his primary medical care provider, including the veteran's pre-military and post-military history, and subsequently diagnosed him with PTSD due to his having witnessed the death of his close friend, L.B. In rendering this diagnosis, the clinical nurse specialist specifically noted the veteran's in-service stressor, noting that the veteran was with a group of friends after work, when another Marine stuck a gun into the ribs of his friend L.B., and pulled the trigger. The bullet went through both of L.B.'s lungs, and the veteran watched his friend die. The clinical nurse specialist noted that after this incident, the veteran stated that he felt shocked, helpless, and then angry. The clinical nurse specialist also went through the DSM-IV criteria and how the veteran met each element. In addition, a subsequent evaluation was conducted by a VA psychiatrist in January 2004. The VA psychiatrist reviewed the veteran's mental health assessment from his primary care medical provider and the evaluation by the clinical nurse specialist. The VA psychiatrist noted that the write up by the clinical nurse specialist was an excellent diagnostic assessment of the veteran's condition. Just as the clinical nurse specialist had done, the VA psychiatrist noted that the veteran had been exposed to a very traumatic event, witnessing the death of his close friend L.B., and that since that time, the veteran has had difficulty with chronic irritability. After a thorough analysis of the veteran's medical history, current symptoms and stressors, the VA psychiatrist confirmed the clinical nurse specialist's assessment of the veteran, and likewise diagnosed the veteran with PTSD. However, the February 2004 VA examiner, also a psychiatrist, stated that all DSM IV PTSD non-combat criteria were not fulfilled in this case. After reviewing the veteran's claims file, the VA examiner noted that the veteran had "few symptoms," and that his level of functioning was not affected "significantly." As such, the February 2004 VA examiner did not diagnose the veteran as having PTSD, but did diagnose depressive disorder, not otherwise specified. The VA examiner stated that it was as likely as not that the depression could be connected with the veteran's experience in the service. Based on this record, the Board finds that there is a question as to whether the veteran has PTSD as a result of his military service. The law is clear that it is the Board's duty to assess the credibility and probative value of evidence, which includes medical opinions. Provided that a medical opinion 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 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). 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 February 2004 VA examiner opined that the veteran did not have PTSD; however he did concede that the veteran had an Axis I psychiatric disorder, depressive disorder, not otherwise specified, that was connected to service. On the other hand, the VA clinical nurse specialist concluded that the veteran does have PTSD related to service, and the VA psychiatrist also diagnosed PTSD while referencing the in- service stressor. Both the VA clinical nurse specialist and the VA psychiatrist were extremely thorough in their review of the evidence of record, and both specifically addressed the relationship between the veteran's PTSD and his in- service stressor. Furthermore, at a VAMC appointment in December 2005, the veteran tested positive on a PTSD screen test. The December 2005 VAMC report noted that the veteran would continue to be seen for follow up on PTSD issues, and would continue to take medication for his PTSD symptoms. Although the February 2004 VA examiner explained why the veteran does not have PTSD, the Board notes that a clear PTSD diagnosis made by a mental health care professional must be presumed, unless evidence shows to the contrary, to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor. Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Indeed, both the VA clinical nurse specialist and the February 2004 VA examiner specifically addressed each of the DSM-IV criteria in conducting their respective evaluations of this veteran. As such, the Board finds that there is reasonable doubt as to whether the veteran has a current diagnosis of PTSD that is related to his military service. To the extent that there is any reasonable doubt as to whether the veteran currently has PTSD that is related to his military service, that doubt will be resolved in the veteran's favor. Based on the evidence of record, the Board finds that the veteran currently has PTSD related to his military service. Accordingly, the Board concludes that service connection for PTSD is warranted. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2007). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs