Citation Nr: 1007227 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 07-20 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Veteran and his wife ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to October 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board notes that the Veteran's original claim was previously remanded to the RO via the Appeals Management Center (AMC) for further development per a Board decision dated November 2007. Additionally, the Board notes that during the veteran's hearing before the undersigned acting Veterans Law Judge, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) was raised. This issue, however, is not currently developed or certified for appellate review. Accordingly, this matter is referred to the RO for appropriate consideration. FINDINGS OF FACT 1. The Veteran's DD 214 reflects that the Veteran was awarded the Purple Heart and the Combat Infantry Badge for his service in Vietnam. 6. There is medical evidence of record which links the Veteran's duties during active service to his diagnosis of PTSD. CONCLUSION OF LAW PTSD was incurred in active service. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate form or completeness of the application. VA notified the Veteran in September 2005 and November 2007 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part the VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant may not have received full notice prior to the initial decision, after notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claim was readjudicated. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication. Analysis The Veteran contends that his PTSD is related to his active service. To establish entitlement to service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet. App. 128 (1997). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM- IV). 38 C.F.R. § 3.304(f). The United States Court of Appeals for Veterans Claims (Court) has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke...in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." Cohen, 10 Vet. App. 128, 140-41 (1997). 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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a Veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case- by-case basis. See VAOPGCPREC 12-99; 65 Fed.Reg. 6527 (2000). If the Veteran did not serve in combat, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statements as to the occurrence of the claimed stressor. Doran v. Brown, 6 Vet. App. 283, 288-89 (1994). The Veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 396 (1996). The instant case turns on whether the Veteran has PTSD which is related to a verified service stressor. The Board has carefully reviewed the evidence of record and finds that service connection for PTSD is warranted. The Veteran's service treatment records are silent as to any treatment for or diagnosis of an acquired psychiatric condition. In March 1969 he was treated for lacerations of the chin, knee and left ear. The Veteran's DD 214 does indicate that the Veteran was awarded both the Combat Infantry Badge and a Purple Heart. The Veteran also reported that he was involved in numerous combat situations, and was wounded on three occasions. The Veteran reported that while in Vietnam, he was in an armored personnel carrier when it struck a land mine. In April 1969, he was manning a machine gun during a firefight, when he was hit by shrapnel in the right side of the head, injuring his ear. The Veteran also reported that in March 1969, during a night march, his platoon was ambushed and had to "fight their way out." Finally, the Veteran reported a buddy of his died when the Veteran pulled his wounded friend behind a track vehicle for safety, but the track vehicle suddenly went into reverse and killed his friend. The Board finds that given the evidence showing that the Veteran was wounded in service, along with the award of the Purple Heart and Combat Infantry Badge for his service, the Veteran's lay assertions establish the occurrence of the claimed inservice stressors. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(1). As such, the Board must determined if the Veteran has a current diagnosis of PTSD linked to the conceded stressors. Post service treatment records reflect diagnoses of various mental heath conditions, including PTSD. VA treatment records dated February 2001 to March 2005 indicated that the Veteran was treated for depression and panic attacks. An April 2005 VA initial PTSD evaluation indicates that the Veteran reported serving for 12 months in Vietnam during which time he was exposed to frequent combat. The Veteran reported being wounded on three occasions as well as lost a buddy during an ambush. After the thorough examination, the psychologist provided diagnoses of dysthymic disorder, adjustment disorder with anxiety due to job loss, and rule out PTSD with delayed onset. The psychologist noted that while the Veteran reported a traumatic stressor and therefore met criterion A for a diagnosis of PTSD, he was not reporting symptoms consistent with PTSD. However, on psychological testing, the psychologist noted that the Veteran met the criteria for PTSD. There was no history of symptoms or impairment because the emergence of these PTSD symptoms seemed to be delayed. The psychologist stated that while the Veteran's described difficulties currently met the criteria for dysthymic disorder with a superimposed current adjustment disorder with anxiety, a diagnosis of PTSD with delayed onset could also be emerging due to the Veteran's recent job loss and absence of activities to keep him distracted. A June 2005 VA therapy record indicates that the Veteran admitted that it was very difficult for him to talk about Vietnam. He also reported thinking about his time in Vietnam, feeling guilty for his friend's death, and excessive viewing of Vietnam-related websites. The psychologist reviewed the Veteran's DD 214 and indicated that it was consistent with his prior report. A diagnosis of PTSD, delayed onset was provided and a Global Assessment of Functioning (GAF) score of 65 was assigned. The psychologist stated that although the Veteran was initially hesitant to report symptoms of PTSD during his clinical interview, he appeared to be reporting more experiences that were consistent with a diagnosis of PTSD. Therefore the psychologist changed the Veteran's diagnosis from dysthymic disorder and adjustment disorder to PTSD. A July 2005 treatment record similarly continued the Veteran's changed diagnosis of PTSD, delayed onset. A September 2005 VA treatment record indicates a diagnosis of recurrent major depressive disorder, and rule out PTSD with delayed onset. The psychologist noted that the Veteran did not report any distress or impairment that he wanted to work on in therapy, denied subjective depression, and did not want to change any aspects of his life, behavior, or thinking. The Veteran was afforded a VA examination in September 2005. The examiner noted that the Veteran had received a Purple Heart and the Combat Infantry Badge. The Veteran complained of symptoms including rumination and obsession with his experiences in Vietnam, especially since retiring from work, guilt, occasional flashbacks, hyper-startle response, and anxiety. After examination, the examiner provided diagnoses of anxiety disorder not otherwise specified, with features of PTSD, panic disorder, and depression. A GAF score of 60 was provided. The examiner opined that based on the Veteran's report of symptoms as well as his scores on psychological testing, the Veteran did not currently meet the diagnostic criteria for PTSD. VA social work and psychiatric therapy progress reports dated 2005 to October 2006 reflect treatment for mental health conditions including anxiety disorder; rule out PTSD, probable major depressive disorder. Social work records dated August 2006 to October 2006 indicate a primary diagnosis of prolonged PTSD. However, an October 2006 progress report by his treating psychiatrist indicates diagnoses of anxiety disorder, not otherwise specified (PTSD) and major depressive disorder. A November 2006 letter from a Readjustment Counseling Therapist states that the Veteran was seen weekly from January 2006. The Veteran initially addressed problematic issues in his life, including nightmares, reactivity to external cues, intrusive thoughts, emotional numbing, and anger management difficulties. He disclosed multiple events that were traumatic in nature that he continued to recall vividly, and which filled him with despair and guilt. The therapist provided an impression of mild to moderate chronic PTSD with delayed onset. A February 2007 progress report from the Veteran's psychiatrist indicates a diagnosis of probable PTSD and depressive disorder not otherwise specified. It was noted that the Veteran continued to have exacerbations of PTSD symptoms including reexperiencing and hyperarousal symptoms. The Veteran was afforded a second VA examination in April 2007. After review of the claims file, the examiner stated that while the Veteran may have received a diagnosis from his therapist providing group therapy, the diagnosis was made without the evaluation required to establish such a diagnosis. After examination, a diagnosis of anxiety disorder not otherwise specified, with mixed features of anxiety and depression, and a GAF of 65 was assigned. The examiner stated that the Veteran reported some symptoms of PTSD, e.g. increased arousal symptoms, but did not present with a full constellation of symptoms necessary for diagnosis of PTSD per the DSM-IV. The examiner also noted that the onset of the Veteran's anxiety and depression coincided with the end of his employment, with no previous psychiatric problems reported. A February 2008 VA treatment record from the Veteran's treating psychiatrist indicates that the Veteran had flashbacks with visual impression and sound impression related to Vietnam. Hypervigilance was also noted. The diagnoses were chronic PTSD, and cognitive disorder not otherwise specified. The Veteran was afforded a travel board hearing before the undersigned Veterans Law Judge in April 2008. The Veteran testified that he served in combat while he was stationed in Vietnam, but had problems re-adjusting to life when he was discharged from active duty. The Veteran stated that he had symptoms including nightmares, panic attacks, isolation, and fear of the unknown. The Veteran's wife testified that the Veteran thrashed in his sleep during nightmares, has a startle response if she surprises him, and that his behaviors and actions have affected their marriage. She stated that they don't go out because the Veteran does not want to be around people. She also reported that the Veteran would not talk about his experiences in Vietnam, and that she often has to remind the Veteran to take his medication or go to a meeting. While the September 2005 and April 2007 VA examiners did not provided a confirmed diagnosis of PTSD, the Board notes that the Veteran has a diagnosis of PTSD. At his initial evaluation in April 2005, the Veteran's psychologist indicated that while the Veteran did not endorse symptoms of PTSD, the Veteran did meet the criteria for PTSD on psychological testing. A diagnosis of PTSD, delayed onset was noted in June 2005 by the Veteran's treating psychologist. It was later changed to recurrent major depressive disorder, and rule out PTSD with delayed onset because the Veteran did not want to change any aspects of his life, behavior, or thinking. The Veteran's readjustment therapist indicated that after numerous therapy sessions, his assessment was that the Veteran had a diagnosis of PTSD. More importantly, the Board notes that the Veteran's treating VA psychiatrist noted diagnoses of PTSD in 2007 and 2008. The Board finds that the medical reports for and against the claim are both probative and credible. The evidence in support of the claim clearly shows diagnoses of PTSD related to the conceded stressors in service. The findings of those examiners support the conclusion that the Veteran does have PTSD with examples of symptoms that support that diagnosis and indicate that PTSD is related to his experiences in Vietnam. Therefore, the Board finds that the evidence is in equipoise as to whether the Veteran currently has PTSD based on his combat experience in service. As such, the Board will apply the benefit-of-the-doubt doctrine in awarding service connection for PTSD. ORDER Service connection for PTSD is granted ____________________________________________ K. J. ALIBRANDO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs