Citation Nr: 1126730 Decision Date: 07/18/11 Archive Date: 07/21/11 DOCKET NO. 07-13 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a mental disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran had active military service from August 1989 to August 1992. This matter comes to the Board of Veterans' Appeals (Board) from an April 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for PTSD. The issue has been recharacterized as shown on the first page of this decision, pursuant to the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009) (scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). The Board remanded this case in June 2009 so that the case could be readjudicated under the holding in Clemons and so that a VA examination addressing the etiology of the claimed mental disorder could be provided, if necessary. The remand requests have been substantially complied with. FINDINGS OF FACT Although the Veteran did not engage in direct combat and his claimed stressors were not capable of verification, a VA physician has assessed PTSD based on the Veteran's claimed stressors, which were consistent with the time, place, and circumstances of his service and were related to fear of hostile military or terrorist activity. CONCLUSION OF LAW Giving the benefit of the doubt to the Veteran, PTSD was incurred in active service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1154, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010); 75 Fed. Reg. 39,843-852 (July 13, 2010) (to be codified at 38 C.F.R. § 3.304(f)(3)). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.326(a) (2010). In view of the disposition herein, additional discussion of those procedures is unnecessary because any defect in the notice or assistance provided to the Veteran constituted harmless error. II. Service Connection A. Applicable Law Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may be granted for disease that is diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). The Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). In order to establish service connection for PTSD, the evidence of record must include a medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders (4th ed. 1994) (DSM-IV). Further relating to claims of service connection for PTSD, in Zarycki v. Brown, 6 Vet. App. 91 (1993), the Court set forth the analytical framework and line of reasoning for determining whether a veteran was exposed to a recognizable stressor during service, which, as discussed above, is an essential element in supporting a claim for service connection for PTSD. In Zarycki, it was noted that, under 38 U.S.C.A. 1154(b), 38 C.F.R. 3.304(d) and (f), and various VA manual provisions, the evidence necessary to establish the incurrence of a recognizable stressor during service to support a claim of service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). Where there is insufficient evidence to establish combat experience, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of his claimed stressor(s). 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). Further, an opinion by a mental health professional based upon a post-service examination of the veteran cannot be used to establish the occurrence of a stressor. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to stressor verification, the VA regulation at 38 C.F.R. 3.304(f) has recently been amended by the Secretary of Veterans Affairs, by the addition a new paragraph which liberalizes, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The paragraph reads as follows: If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)(3), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. B. Facts and Analysis In this case, the Veteran contends he has PTSD as a result of active service. Specifically, in his statements submitted in August 2006 and January 2007, the Veteran stated that in March 1991 while he was stationed in Saudi Arabia as part of Operation Desert Storm, he and a fellow service member, D.K., fired at and killed two Sri Lankan teenagers who were driving a jeep toward their position, did not stop when requested, and apparently pulled out a weapon after their jeep became entangled with wire. He further mentioned that he and D.K. mistakenly fired a warning shot in front of an NCO (non-commissioned officer) who they thought was an enemy combatant penetrating their perimeter. The Board will first consider whether the Veteran has been diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a). The service treatment records do not contain any diagnosis of PTSD or other mental disorder. Following separation from service, a June 2000 VA examination report notes that the Veteran did not have any psychiatric complaints, hospitalization, or treatment. The diagnostic impression was of a normal mental status examination. A February 2005 VA preventive health screening note signed by a vocational nurse shows a negative PTSD screen. The first diagnosis of PTSD after separation from service is found in an August 2005 VA treatment record. It was noted that the Veteran presented at his "wife's persistence" with the chief complaint of nightmares, occurring two to three times per week since 1992, involving his past combat experiences in the Persian Gulf War. A vivid scene that repeated involved a jeep and two teenagers, whom he was forced to shoot and kill. He expressed guilt over having to kill these two innocent "kids." Sometimes he would wake up because of the nightmares, but other times his wife would elbow him, because he would yell or make noise whenever he re-experienced that scene. In addition to re-experiencing symptoms, since coming back from the Gulf War he had found himself avoiding thoughts of the war, but the thoughts just seemed to pop into his head. He avoided watching war scenes on the news and avoided talking about his experiences in the war. As he spoke that day, the examiner commented that he appeared uncomfortable, because he had never done this before. The Veteran also said that, ever since coming back from the war, he had avoided huge crowds, which made him anxious and preferred to be by himself when working on things. He also had noticed that he always seemed to be more on edge or hypervigilant ever since coming back from the war. Whenever he left his house he always checked over his shoulder and was alert. He indicated that he regretted not seeking help for his nightmares before but that the symptoms had gotten worse in the past two years due to the present military conflict overseas. He also acknowledged that his wife had been trying to get him to seek treatment for years. He recalled that when he came back to Germany after the Gulf War, he had thought that it would have been better to have died in the war. The examiner found that the Veteran had recurring nightmares, avoidance symptoms, and hypervigilance symptoms in association with his past experiences in the Gulf War, which were most consistent with a diagnosis of PTSD. The Veteran currently refused any treatment. The record was signed by a medical student and a physician, and was later reviewed and confirmed by a psychiatric attending physician. A later, August 2005 VA treatment report noted that the Veteran returned with his wife and was interested in treatment for his PTSD. He continued to receive treatment through April 2006. An April 25, 2006, vocational nurse's assessment noted a negative PTSD screen; however, an April 25, 2006, mental health record signed by a physician and a clinical psychologist notes a finding of PTSD and depressive disorder, NOS (not otherwise specified). A June 2010 VA examination report shows the Veteran had a history of depressive disorder and PTSD. He said that in Tabuk, Saudi Arabia, in October 1990 he was with fellow service member D.K. when two teenagers drove a jeep up to his check-point in the middle of the night. They ordered them to get out and, when the driver got out, he was holding something and then the passenger got out while picking up a weapon. The Veteran and D.K. shot them dead. He still dreamed about D.K. standing by the jeep and it still bothered him that he had to shoot teenagers. On clinical evaluation, the examiner found that the Veteran met the DSM-IV criteria for a diagnosis of PTSD and depressive disorder, NOS. The examiner determined that the depressive disorder was interactive with the PTSD and could not be separated therefrom. The examiner noted that the Veteran had anxiety and depression and remained angry and guilty about having to shoot teenagers. He also had panic attacks, suicidal ideation, and nightmares, few friends, avoided crowds, and had conflicts with peers. The examiner determined that it is more likely than not that the Veteran has PTSD due to the specified in-service stressor. The examiner further found that the Veteran's PTSD was caused by or a result of shooting and killing two teenagers driving a jeep toward his checkpoint during Operation Desert Storm. The rationale for the opinion was that the Veteran had enjoyed being in public and held a steady job before, but not after he served in Desert Storm. It was noted that the report was made by an individual with a PhD (which most likely means a psychologist with a doctoral degree). With the exception of the two negative PTSD screens performed by a VA vocational nurse, the medical evidence supports a current diagnosis of PTSD. Thus, the Board finds, for the purpose of the present decision, that the Veteran has a current PTSD diagnosis which meets the criteria of 38 C.F.R. § 4.125(a). The Veteran also has a diagnosis of depressive disorder, which has been attributed to the PTSD. Under the law, the Board must next consider whether the above diagnosis of PTSD can be related to service, that is, whether there is credible supporting evidence that one or more claimed in-service stressors occurred to support a PTSD diagnosis. The Veteran's DD Form 214 lists his Army military occupational specialty (MOS) as an Infantryman and shows that he received the Army Service Ribbon, Army Achievement Medal, and Overseas Service Ribbon, among others. He also had two years, eight months, and eight days of foreign service. Those awards and decorations do not indicate that he was in the Persian Gulf War, or that he was directly engaged in combat. The Veteran was attached to the HHB 1/7th ADA, 32nd AADCOM. The service personnel records show the Veteran served in EURA-GERMANY from December 12, 1989, to December 12, 1991. The service personnel records also show, however, that effective February 1, 1991, the Headquarters and Headquarters Battery, 1st Battalion, 7th ADA was attached to the 4th Battalion, HQ 11th, Bdl, 43rd ADA and was assigned to the 32d Army Air Defense Command to support Joint Task Force Patriot in Operation Desert Storm. An attached unit roster includes the Veteran's name. Pursuant to a previous claim unrelated to the present appeal, the RO sent a request to the National Personnel Records Center (NPRC) to determine the dates (if any) during which the Veteran served in Southwest Asia. There is no response of record from the NPRC. However, on a subsequent August 2000 rating decision (unrelated to this appeal) the RO noted that the Veteran's Southwest Asia service dates were from February 13, 1991, to March 15, 1991. The claims file contains letters from the Veteran's father and brothers noting that the Veteran served in Desert Storm/Middle East. VA and private treatment records dated from 1991 to 2006 also consistently show the Veteran's reports that he served in Saudi Arabia during Desert Storm. The Board finds that the personnel records show that the Veteran served in support of Operation Desert Storm. His Persian Gulf War service also is supported by the various statements from the Veteran of record, and the letters submitted by his father and brother. However, the personnel records do not establish that the Veteran was engaged in combat. As a result, his statements as to any in-service stressor(s) cannot be accepted without further corroboration through independent evidence, under the judicial precedent in Doran, supra. The Joint Services Records Research Center (JSRRC) was not contacted to verify the stressor event. The Veteran specifically stated in his August 2006 statement that a report was not filed regarding the incident and that he was told by his CO (Commanding Officer) that the matter was being handled by Saudi officials. Based on the above information, the RO denied the Veteran's claim for service connection on the basis that his claimed stressors were not sufficiently corroborated under Doran, supra. However, under the new regulation, quoted above, where the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if the stressor is related to the Veteran's fear of hostile military or terrorist activity, and a VA psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the Veteran's symptoms are related to the claimed stressor. In this case, the Veteran's claimed stressors are consistent with his service in Southwest Asia during the Persian Gulf War and are related to his fear of terrorist activity. Moreover, a VA staff psychiatrist confirmed in August 2005 that the Veteran met the criteria for PTSD based on his claimed in-service stressor. In a January 2010 VA examination report, a psychologist also found that the Veteran's reported stressor caused his PTSD symptoms. In view of the foregoing, the Board finds that, although the evidence does not clearly preponderate in favor of the claim, there is reasonable doubt as to whether it is sufficient to grant service connection. Accordingly, without finding error in the previous action taken by the RO, the Board will exercise its discretion to find that the evidence is in relative equipoise, and will conclude that service connection for PTSD is warranted, based on the amended regulation. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102, 3.304(f)(3); Gilbert, 1 Vet. App. at 53 (1990). ORDER Service connection for posttraumatic stress disorder is granted. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs