Citation Nr: 1126375	
Decision Date: 07/13/11    Archive Date: 07/19/11

DOCKET NO.  05-24 365	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Robert V. Chisholm, Esq.


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

L. B. Yantz, Associate Counsel


INTRODUCTION

The Veteran served on active duty from June 1970 to February 1972.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In November 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge.  A transcript of this hearing is associated with the claims file.

In January 2009, the Board remanded this case for further evidentiary development.  Thereafter, in August 2010, the Board denied entitlement to service connection for PTSD.  In January 2011, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion to remand this claim to the Board.

In April 2011, the Veteran's representative, on the Veteran's behalf, submitted additional evidence with a waiver of initial RO consideration.  See 38 C.F.R. § 20.1304 (2010).


FINDING OF FACT

The Veteran has been diagnosed with PTSD related to an in-service stressor that has been corroborated by credible supporting evidence.


CONCLUSION OF LAW

The Veteran's current PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010).


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010).

Given the Board's favorable disposition to grant the claim for service connection for PTSD, the Board finds that no discussion of VCAA compliance is necessary at this time.

Analysis

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2010).  Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned.  38 C.F.R. § 3.303(b).  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

In order to prevail on the issue of service connection, there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999).

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); a link, established by medical evaluation, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred.  The Board notes that effective July 13, 2010, 38 C.F.R. § 3.304(f) was amended; however, under the facts of this case the regulatory change does not impact the outcome of the appeal.  See 75 Fed. Reg. 39843 (July 13, 2010); 75 Fed. Reg. 41092 (July 15, 2010).

The determination as to whether the requirements for entitlement to service connection have been met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2010).  When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2010).  If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

The Board has reviewed all of the evidence in the Veteran's claims file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Veteran contends that he suffers from PTSD as a result of witnessing the homicide of one of his fellow soldiers and being threatened by the murderer immediately thereafter during his active service in Vietnam.  The Veteran's service treatment records are negative for any complaints, diagnosis, or treatment of PTSD, and his psychiatric state was evaluated as normal at his February 1972 service separation examination.  His service personnel records do not show that the Veteran was awarded any medals indicative of combat.  However, records from the U.S. Army Criminal Investigation Command confirm that the Veteran was present during the murder of a fellow soldier, and that the murderer threatened the Veteran.

Turning to the medical evidence, the Veteran earned a positive score on a VA PTSD screening in July 2005, and thus was referred for a mental health consultation.  In August 2005, a VA nurse practitioner used the Veteran's own reports of his symptomatology to determine which criteria (A, B, C, and D) he currently manifested, but he did not render a diagnosis of PTSD for the Veteran, nor did he perform a mental status evaluation.  Thereafter, VA treatment records dated from August 2005 through January 2007 reflect psychological treatment for the Veteran for diagnostic assessments of PTSD, depression, and anxiety.

Following the verification of his in-service stressor, the Veteran underwent a VA PTSD examination in September 2009.  On that occasion, the examiner indicated her review of the claims file.  The Veteran complained of having nightmares related to his Vietnam stressor three to four times a week.  After conducting a thorough interview and examination of the Veteran, the examiner determined that the Veteran did not meet the criteria for PTSD, as he did not report any symptoms consistent with Category C (involving persistent avoidance of stimuli).  Furthermore, she noted that his objective testing also was not consistent with PTSD.  Although the Veteran reported having problems from the time he left Vietnam, the examiner noted that he did not seek treatment until 2005.  The examiner diagnosed the Veteran with depressive disorder not otherwise specified, alcohol dependency in questionable remission, and polysubstance abuse (marijuana and cocaine) in questionable remission.  She noted that his alcohol and anger problems appeared to have preceded his military service, and concluded that there was no evidence that his current depressive symptoms were related to military service.

Thereafter, the Veteran underwent a private psychological evaluation in March 2011.  On that occasion, the examining psychologist indicated his review of the claims file.  The Veteran described a history of PTSD symptoms that began during his military service, and he provided details regarding several in-service stressors, including the verified stressor of witnessing the homicide of one of his fellow soldiers and being threatened by the murderer immediately thereafter.  It was noted that the Veteran did not seek out mental health treatment following his in-service trauma until a family member commented on his symptoms and urged him to get checked out.  During the current evaluation, the Clinician-Administered PTSD Scale (CAPS) was conducted, and the Veteran was asked to base his responses as much as possible upon only the events surrounding the murder of his fellow soldier.

At the conclusion of the March 2011 private psychological evaluation, the Veteran was diagnosed with chronic PTSD due to the military stressor of his fellow soldier's murder.  The examining psychologist noted that the Veteran's symptoms related to PTSD began after the murder of his fellow soldier.  The examining psychologist also noted that the current objective test results clearly indicated the presence of severe PTSD symptomatology, including symptoms related to Criterion C.  Therefore, the examining psychologist concluded that a diagnosis of PTSD was the more accurate description of the Veteran's symptomatology.  Furthermore, the examining psychologist determined that the Veteran did not have a current diagnosis of either alcohol dependency or polysubstance abuse (contrary to the findings of the September 2009 VA examination).

Given the evidence outlined above, and after resolving all doubt in the Veteran's favor, the Board finds that the Veteran's current PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2010).  Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue.  Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994).  The mandate to accord the benefit of the doubt is triggered when the evidence has reached a stage of equipoise.  In this matter, the Board is of the opinion that this point has been attained.  As such, the Board concludes that service connection for PTSD is warranted.


ORDER

Entitlement to service connection for PTSD is granted.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs