Citation Nr: 1105063 Decision Date: 02/07/11 Archive Date: 02/14/11 DOCKET NO. 05-04 530 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia 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 A. Michel, Associate Counsel INTRODUCTION The Veteran had active air service from June 1973 to June 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. When this case most recently was before the Board in June 2010, it was remanded for evidentiary development. The case since has been returned to the Board for further appellate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (9). FINDINGS OF FACT 1. The Veteran was not found to have a psychiatric disorder on his induction examination. 2. Chronic PTSD was present in service; the evidence does not clearly and unmistakably establish that the disorder did not increase in severity as a result of active duty. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1111 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of his claim. In addition, the evidence currently of record is sufficient to substantiate his claim. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2010) or 38 C.F.R. § 3.159 (2010). Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for PTSD based on an in-service stressor requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in- service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 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, 1 Vet. App. at 54. Analysis The Veteran urges that he first manifested psychiatric disability in service. Specifically, the Veteran asserts that he does not have PTSD as a result of sexual abuse as a child, but rather his PTSD is a result of his active service. The Veteran reported that one of his sergeants mentally abused him by calling him, among other things, a "dumb West Virginia hillbilly." Additionally, the Veteran reported that the constant stress of not knowing whether he was going to be deployed to Vietnam also caused him to suffer from PTSD. A review of the Veteran's service treatment records (STRs) show that he did not receive treatment for a psychiatric condition of any kind while on active duty. STRs show that at his induction examination in February 1973, and at his separation examination in May 1974, the Veteran's psychiatric status was noted as being normal. A review of the record shows that in October 1995 the Veteran was seen for a psychological evaluation by a private physician. At that time the Veteran reported that he had been sexually abused as a child. The examiner reported that the Veteran's history of abuse explained some of his current symptoms, such as recurrent dreams at night of his past experience, his angry affect, and his inability to trust others. The examiner diagnosed the Veteran with PTSD due to childhood sexual abuse. In February 2002, after intelligence testing and studies were conducted, the Veteran was found to have mild mental retardation. Ms. B.S., who conducted the February 2002 evaluation, stated that from the history obtained from the Veteran, it appeared that his mental illness first manifested itself while he was in the service in 1973 and 1974. She opined that due to abuse the Veteran suffered as a child, the Veteran probably suffered from mental illness prior to serving in the USAF. She stated, however, that the stress of the military probably triggered the Veteran's debilitating psychological problems. In February 2009, in accordance with the Board's remand in November 2007, the Veteran was afforded a VA examination to determine the nature and etiology of any currently present psychiatric disorder. At that time, the examiner did not diagnose the Veteran with PTSD. However, the VA examiner stated that neither the Veteran's assertion that he was called a "dumb hick" by his sergeant or the stress he experienced over the uncertainty of being deployed overseas met the DSM-IV stressor criteria for PTSD. In July 2009, the Board denied the Veteran's claim of entitlement to service connection for a psychiatric disability. The Veteran appealed the Board's decision to the Court. In January 2010, the U. Ss. Court of Appeals for Veterans Claims granted a joint motion of the parties, vacated the Board's decision, and remanded the case to the Board for action consistent with the joint motion. The joint motion of the parties noted that it was unclear from the February 2009 VA examination report as to whether the Veteran had a current diagnosis of PTSD. The joint motion of the parties specifically states that the VA examiner did not appear to have excluded it as a diagnosis, as the examiner's only comment was that the Veteran's reported in-service stressors were insufficient to meet the DSM-IV stressor criteria for PTSD. The joint motion of the parties also called attention to the fact that the February 2009 VA examination was not specifically a PTSD examination. Finally, it was noted that the Veteran's was diagnosed with PTSD as a result of childhood sexual abuse and so, the PTSD could have pre- existed the Veteran's active service. When this case most recently was before the Board in June 2010, it was remanded for evidentiary development consistent with the joint motion, to include affording the Veteran another VA examination. In July 2010, in accordance with the Board's most recent remand, the Veteran was afforded a VA examination for PTSD in which he reported sleep disturbances; relationship problems; having nightmares about bodies at a morgue as he had worked close to a morgue and occasionally could glance into a body bag; and seeing "bad sights" while volunteering at Walter Reed Hospital. When asked what he thought was the most traumatic event in Vietnam, he replied that missing home was the worst and that it was very hot over there. When asked about other significant events, he, in pertinent part, denied having any serious injuries or illnesses and identified having no arguments or problems with other soldiers stationed in Vietnam or during his "hitch" in service. In an addendum submitted in November 2010, the VA examiner from the July 2010 examination diagnosed the Veteran, in pertinent part, with PTSD, chronic. The examiner noted that the diagnosis was secondary to the Veteran reporting at the July 2010 examination (and previously at the private evaluation in October 1995) that he was traumatized since he was in his teenage years when he was sexually abused repeatedly for over one year by his neighbor prior to service. The VA examiner provided rationale for the diagnosis to include that the Veteran endorsed symptoms of re-experiencing the traumatic event with recurrent memories, nightmares, and flashback memories of the sexual abuse experience; persistent symptoms of hyperarousal including poor and broken sleep with frequent awakenings from nightmares of the traumatic event; chronic irritability; anger outburst with loss of control; poor concentration and hypervigilance; social isolation; poor relationship with friends, relatives, and his own family; chronic paranoid ideation of persecution. The VA examiner stated that these PTSD symptoms existed prior to service; however, due to moderate stressors during service including his 30 day admission to the Sheppard base for hematuria, the stress/pressure from a potential deployment to Vietnam, and the intimidation from his sergeant led to worsening of his PTSD symptoms during the service. The VA examiner also stated that the level of severity seemed to wax and wane after discharge from service until the present time. The VA examiner opined that the PTSD was not permanently aggravated by military service and that the moderate stressors in service did temporarily aggravate the symptoms, which waxed and waned, but there was no evidence of permanent aggravation. The July 2010 VA examiner has, in essence, opined that the Veteran's PTSD was present in service and was not permanently aggravated by service. This opinion is based on an examination of the Veteran and a review of his pertinent history. There is nothing in the examination report or in the other evidence of record that clearly and unmistakably establishes that the Veteran's PTSD was not aggravated by active duty. Therefore, the presumption of soundness has not been rebutted, and the Veteran is entitled to service connection for the PTSD. ORDER Service connection for PTSD is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs