Citation Nr: 1215134 Decision Date: 04/25/12 Archive Date: 05/03/12 DOCKET NO. 08-17 102 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD H. A. Hoeft, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to December 1969. The Veteran had additional periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Puerto Rico National Guard (PRNG). The appeal initially came before the Board of Veterans' Appeals (Board) from a January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, in which the RO denied service connection for a depressive disorder, not otherwise specified, and denied service connection for PTSD. The appeal, recharacterized as a claim for service connection for an acquired psychiatric disorder, to include PTSD, was remanded in July 2010 and March 2011. The issues of entitlement to service connection for diabetes mellitus, type II, as secondary to herbicide exposure, with associated neuropathy of the upper and lower extremities, erectile dysfunction, high blood pressure, kidney condition, heart condition, urinary incontinence, eye conditions, and fecal incontinence, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). See VA Form 21-4138, March 2011. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Resolving all reasonable doubt in the Veteran's favor, an acquired psychiatric disorder, diagnosed as PTSD and depression, is related to active service. CONCLUSION OF LAW By extending the benefit of the doubt to the Veteran, service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, is warranted. 38 U.S.C.A. §§ 1110, 1131, 1154, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION In view of the favorable outcome of the issue decided herein, compliance with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)) need not be discussed. Service Connection - In General The Veteran seeks service connection for an acquired psychiatric disorder. He specifically contends that he was exposed to traumatic events (or stressors) while serving in Vietnam and that he has PTSD as a result. He has also endorsed continuous psychiatric symptomatology since that time. In order to establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) the in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the Veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Entitlement to service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304. 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 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 C.F.R. § 3.304(f); West v. Brown, 7 Vet. App. 70 (1994). If the Veteran did not engage in combat with the enemy, or if the claimed stressors are not related to combat, the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and those stressors must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997). VA also recently amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standard for establishing the in-service stressor required for PTSD claims. Service connection for PTSD may now be granted if the evidence demonstrates (1) a current diagnosis of PTSD (rendered by an examiner specified by the regulation); (2) an in-service stressor consistent with the places, types, and circumstances of service (satisfactorily established by lay testimony) that has been medically related to the Veteran's fear of hostile military or terrorist activity by a VA psychiatrist or psychologist, or one contracted with by VA; and (3) evidence that the Veteran's PTSD symptoms have been medically related to the in-service stressor by a VA psychiatrist or a psychologist, or one contracted with by VA. Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,852 (July 13, 2010). Facts The Veteran has detailed several traumatic events concerning his service in Vietnam. He specifically contends that his base in Da Nang came under enemy attack on several occasions between March 1969 and December 1969, and that he witnessed fellow soldiers being killed and/or seriously wounded. The Board initially notes that the Veteran is not in receipt of any combat-related awards or decorations. Service personnel records confirm that he served in the Republic of Vietnam from March 1969 to December 1969, and that he was attached to the 45th Engineering Group and Company D of the 87th Engineering Battalion (Construction). His DD Form 214 reflects that his military occupational specialty was that of "cook." The Board also briefly notes that the Veteran's active duty service treatment records are silent as to complaints, treatment, or diagnoses relating to an acquired psychiatric disorder and/or PTSD. In February 1970, the Veteran filed a claim for service connection for a "nervous condition." He was afforded a VA examination in December 1971 and complained of insomnia and poor concentration. The contemporaneous psychiatric examination revealed that the Veteran was anxious; he reported that he was concerned about his "anxious state that he developed while he was in Vietnam," which was getting progressively worse. He noted problems adjusting to his environment, sleep disturbances, nightmares, irritability, behavior changes, difficulty learning, poor mental concentration, and auditory hallucinations. The diagnostic impression was moderate to severe anxiety reaction. The Veteran's claim for a "nervous condition" was ultimately denied in a 1989 rating decision. Records obtained from the Social Security Administration (SSA) reflect that the Veteran was granted SSA disability benefits in 2003 based upon the assignment of a diagnosis of major depression. See, e.g., Psychiatric Evaluation, November 2003. The Veteran again pursued a claim of entitlement to a psychiatric condition, namely PTSD, in 2007. In February 2007, Dr. L.A.E., M.D., stated that he initially treated the Veteran in February 2003 and that his condition "has continued...without remission." He noted depression, anxiety, flashbacks of his Vietnam war experiences, insomnia, isolation, nightmares, irritability, increased startle response, suicidal ideas, and forgetfulness. The pertinent diagnosis was chronic PTSD. The Veteran underwent a VA PTSD examination in December 2007. He reported that his symptoms of insomnia and social isolation began when he was discharged from service and that he subsequently developed "occupational conflicts" and "moderate ruminations." With respect to his military stressors, the Veteran reported that his company essentially had to go into hiding when the enemy infiltrated the base. On another occasion, while taking food to an engineering company, his unit was attacked by Viet Cong. The VA examiner found that the Veteran did not meet either the DSM IV stressor or diagnostic criterion for PTSD. The examiner noted that he did not experience persistent avoidance, re-experiencing, or hyper-arousal; nor was he able to describe his in-service stressor in detail. Accordingly, the pertinent diagnosis was depressive disorder, not otherwise specified. VA treatment records dated from 2006 to 2010 show continued treatment for mental health problems, including major depressive disorder and a history of PTSD. The Veteran underwent two additional VA mental examinations in September 2010 and June 2011. At the time of the 2010 examination, the Veteran reported hearing voices, poor sleep, nightmares, and irritability. With respect to his stressors, he stated that he witnessed a fellow soldier's death when he was hit by enemy fire. The pertinent diagnosis was, again, depressive disorder NOS. The examiner found that the Veteran did not meet the diagnostic criteria for PTSD, but did meet the stressor criterion for PTSD. He further opined that the Veteran's depressive disorder began in February 2003, and that it was not related to military service. He provided no other rationale. The Veteran subsequently alleged that the 2010 VA examination was inadequate and unfair because the examiner who had previously provided an unfavorable opinion improperly discussed the Veteran's case with the 2010 VA examiner. The Veteran was thus afforded a new examination in June 2011. At that time, the Veteran again reported witnessing an accident involving actual or threatened death to self or others during active duty service in Vietnam. The examiner noted that the Veteran met the DSM-IV stressor criteria for PTSD, but not the diagnostic criteria. The pertinent diagnosis was depressive disorder, NOS. The examiner opined that it was less likely than not that the current psychiatric disorder had its onset during service. He reasoned that the record failed to show any regular psychiatric treatment until 2003 and that this did not support any relationship between the current condition and military service. For the same reasons, the VA examiner concluded that it was less likely than not that the depressive disorder was due to the Veteran's active service, or that it had been chronic and continuous since service. In October 2010, Dr. Ortiz, M.D., provided a letter in support of the Veteran's claim for PTSD. She stated that the Veteran presented with sleep problems, nightmares, and flashbacks of his experiences in war. He experienced auditory/visual hallucinations. He was unable to be in crowded areas and cannot tolerate loud noises or speaking about Vietnam. He also reported hearing the voice of a friend who died while in Vietnam. He noted periods of hypervigilance, irritability, anxiety, and frustration. He endorsed avoidance of circumstances that evoke memories of Vietnam. Dr. Ortiz noted that the Veteran had been experiencing anxiety and depressed mood since his separation from active duty. She noted marked decrease interest in activities, low energy, feelings of worthlessness, frequent crying spells, and isolation. Dr. Ortiz concluded that the Veteran was "in a combat area and attacked multiple times," that he witnessed a good friend die beside him, and that he was attacked when he was on his way back to a truck after taking food to an engineering unit. She opined that there was sufficient evidence of a DSM-IV conforming diagnosis of PTSD; credible supporting evidence that the in-service stressors actually occurred and that there was a medical link between his current symptomatology and the claimed in-service stressors. Thus, she concluded that it was "more probable than not" that his PTSD and depression were service connected. Analysis At the outset, the Board notes that the record sufficiently establishes that the Veteran served in the Republic of Vietnam from March 1969 to December 1969; that his MOS was that of cook; and that he was attached to the 45th Engineering Group. In November 2007, the RO requested documentation from the U.S. Armed Services Center for Unit Records Research (i.e., CURR) with respect to the Veteran's unit and its history for the relevant time period. The search request confirmed that the Veteran's unit established its headquarters/base camp at Da Nang in March 1968 and that it remained there until 1972. The unit's history also confirmed that 45th engineering personnel were under "constant sniper and ambush harassment during 1969 while operating in the vicinity of Da Nang." An extensive search of the US Army casualty database was unable to confirm the death of a solider that the Veteran named in an earlier statement. In this case, the Veteran has consistently reported in both lay statements and in medical records, that his unit was ambushed on multiple occasions while he was stationed in Da Nang in 1969. See PTSD Stressor Statement, VA Form 21-0781. He is competent to report on such matters. He has also stated that he was ambushed on at least one occasion while delivering food to an engineering unit in the field. The Board notes that this is consistent with the circumstances of his service, i.e., his likely duties as a cook in a combat area (Da Nang). Moreover, the CURR report confirms that the unit's engineering personnel came under "constant" sniper/ambush harassment in 1969. Given that the Veteran was in Vietnam for nearly 9 months in 1969, and further considering that his unit was based in Da Nang, it is likely that the Veteran experienced some of these ambushes firsthand as he contends. For these reasons, the Board finds that there is sufficient corroborating evidence to establish that the Veteran's in-service stressors occurred. Thus, the remaining question is whether (a) there is evidence diagnosing the condition in accordance with 38 CFR 4.125, and (b) whether a link exists between current symptomatology and the in-service stressors. With respect to a current PTSD diagnosis, the Board notes that February 2007 and October 2010 private treatment records outlined above confirm a PTSD diagnosis, the latter of which was expressly noted as "DSM-IV" conforming. Thus, the PTSD diagnosis requirement has been met here. With respect to nexus, Dr. Ortiz stated in her October 2010 assessment of the Veteran that his PTSD and depression were "service connected." In so finding, she detailed his now-verified stressors of being ambushed while delivering food at Da Nang and she expressly stated that the Veteran met all three service connection criteria for PTSD (i.e., DSM-IV diagnosis, credible supporting evidence of an in-service stressor, and medical evidence of a link between the current symptoms and the in-service stressor). The Board acknowledges that various VA examiners have concluded that the Veteran does not have PTSD, but rather depressive disorder that is not related to service. However, these examiners provided little or no rationale for their findings. Indeed, the 2010 and 2011 VA examiners simply stated that the Veteran did not meet the PTSD diagnostic criteria and provided no further explanation/rationale. With respect to the 2007 VA examination, the examiner reasoned that the Veteran did not experience avoidance, re-experiencing of the stressor, or the hyper-arousal symptoms associated with PTSD. However, this is in direct contradiction to the Veteran's statements and the VA examiner's own clinical findings which expressly noted positive PTSD symptoms, including "distressing dreams" of the event, difficulty falling asleep or staying asleep, and markedly diminished interest or participation in activities. See VA Examination Report, December 2007, p. 8. The Board also notes that the examiners failed to take into consideration the Veteran's reports of continuous PTSD symptomatology and/or documented complaints of related psychiatric symptoms as early as 1971. See December 1971 VA Examination Report. For all of these reasons, the Board affords less probative value to the various VA examination reports which failed to fully assess the Veteran's claimed in-service stressors, continuity of symptomatology, and/or current PTSD symptoms. This is contrasted with Dr. Ortiz's examination report. 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 such a stage of balance. In this matter, the Board concludes that this point has been attained. Because a state of relative equipoise has been reached in this case, the benefit of the doubt rule will therefore be applied. See Alemany, 9 Vet. App. at 519; Brown, 5 Vet. App. at 421. Indeed, the objective evidence of record shows that the Veteran served in the Republic of Vietnam from March 1969 to December 1969 and that he was stationed with the 45th Engineering Group base camp in Da Nang, where CURR records confirm that his unit was exposed to "constant" sniper and ambush harassment throughout 1969 (i.e., sufficiently corroborated in-service stressor). Following service, the record reflects post-service treatment as early as 1971 for PTSD-like symptomatology. See December 1971 VA Examination Report. The record also reflects at least two current PTSD diagnoses, one of which is DSM-IV conforming. Lastly, the most probative medical evidence of record sufficiently relates diagnosed PTSD and depression to the Veteran's military service, to include his confirmed stressors. Thus, resolving all reasonable doubt in the Veteran's favor, the criteria to establish service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, have been met and the claims is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD and depression, is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs