Citation Nr: 1109081 Decision Date: 03/08/11 Archive Date: 03/17/11 DOCKET NO. 09-36 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD T. M. Gillett, Associate Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from September 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran did not request a hearing before the Board. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran's in-service stressor of witnessing civilian casualties in Kuwait is sufficiently confirmed. 3. The Veteran has been diagnosed as having PTSD. 4. The evidence for and against the claim is in relative equipoise on the question of whether the Veteran's diagnosed PTSD arose from the confirmed in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, service connection for a psychiatric disorder, specifically PTSD, is granted. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). Because the determination below constitutes a full grant of the claim for service connection for a psychiatric disorder, which includes PTSD, there is no reason to discuss how VA has satisfied the VCAA. Service Connection Laws and Regulations Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. For the showing of 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. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection, generally, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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). Service connection for PTSD requires medical evidence diagnosing 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. See 38 C.F.R. § 3.304(f). 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 a 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) (West 2002 & Supp. 2010); 38 C.F.R. § 3.304(f). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a Veteran personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99; Moran v. Principi, 17 Vet. App. 149 (2003); see also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether the Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of posttraumatic stress disorder is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. It is the defined and consistently applied policy of the VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence, which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Analysis of Service Connection for a Psychiatric Disorder The Veteran essentially contends that he developed a psychiatric disorder, specifically PTSD, as a result of his experiences in service. Specifically, he states that, in February 1991, he served on the "Highway of Death" in Kuwait. He contends that at that time he was exposed to great numbers of civilian casualties. Having considered all the evidence of record in light of the regulations noted above, the Board finds that, with the resolution of reasonable doubt in the Veteran's favor, service connection is warranted for a psychiatric disorder, specifically PTSD. First, the Board notes that the Veteran is not a combat Veteran nor does he claim to be. A service personnel record, specifically a DD Form 214, indicates the Veteran's military occupational specialty (MOS) was that of a construction equipment repairer, and the Veteran was not awarded any medals indicative of combat. The Board finds that the Veteran's in-service stressor of witnessing civilian casualties in Kuwait is sufficiently confirmed. In an April 2007 statement, the Veteran reported that, on February 27, 1991, his company was involved in a "bulldozer assault." At that time, he had to take part in the disposal of the bodies of enemy Iraqis. He also reported serving on the "Highway of Death," west of Kuwait City, in February 1991. At that time, he saw dead and dying women, and parentless children begging on the side of the road. He stated that the scent of death was everywhere at that time. A November 2007 VA document indicates that, after a review of the Veteran's unit histories, VA confirmed that the Veteran served along the "Highway of Death" in February 1991. Therefore, the Veteran's account of seeing dying and dead during service is sufficiently confirmed. The Veteran has been diagnosed with PTSD. In a December 2007 VA medical examination report, a VA examiner, having interviewed the Veteran, diagnosed PTSD. Also, in a July 2009 letter, a private examiner indicated diagnosing the Veteran as having PTSD, chronic, with delayed onset. The Board finds that the evidence is in relative equipoise as to whether the Veteran's diagnosed PTSD is related to the confirmed in-service stressor. In the December 2007 VA PTSD examination report, the VA examiner, in part, diagnosed PTSD. In writing the conclusions, the VA examiner stated that, although the Veteran had PTSD, the disorder was not related to the Veteran's service. The examiner noted that the Veteran relayed other traumatic experiences in his life, to include the murder of his father when the Veteran was seven, and the 1993 post-service murder of the Veteran's uncle, who was shot and killed in front of the Veteran. The VA examiner indicated that the Veteran had intrusive thoughts and nightmares about his relative's deaths. The examiner VA also noted that the Veteran did not report emergence of PTSD symptoms until after his uncle's murder. Therefore, the VA examiner concluded that the Veteran's PTSD was related to non-service-related stressors. By contrast, in a July 2009 letter, a private examiner, specifically a psychologist, reported meeting with the Veteran in June 2009. At that time, the Veteran reported his experiences during service, to include the witnessing of civilian casualties along the "Highway of Death." The examiner noted that the Veteran manifested symptoms of re-experiencing traumas during service with depressive thoughts associated with trauma, diminished interest in activities, feelings of detachment and estrangement from others, and a restricted range of affect. The diagnosis was PTSD, chronic, with delayed onset. In view of the totality of the evidence, including the December 2007 VA medical examination report and the July 2009 letter from the private examiner, the Board finds that the evidence is in relative equipoise on the question of whether the Veteran has PTSD due to his confirmed stressor. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for a psychiatric disorder have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a PTSD is granted. ____________________________________________ J. PARKER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs