Citation Nr: 1237602 Decision Date: 11/02/12 Archive Date: 11/09/12 DOCKET NO. 10-20 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: James G. Fausone, Attorney at Law ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran (Appellant or Claimant) served on active duty from October 1994 to October 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. The Veteran did not request a hearing before the Board. FINDINGS OF FACT 1. The Veteran has diagnosed PTSD. 2. The Veteran's claimed stressors are related to fear of hostile military or terrorist activity and are consistent with the places, types, and circumstances of service. 3. The PTSD stressors are adequate to support a diagnosis of PTSD, and the PTSD symptoms are related to the claimed stressors. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection PTSD have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2011). 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Because the determination below constitutes a full grant of the claim for service connection for PTSD, there is no reason to discuss how VA has satisfied the VCAA. Service Connection for PTSD 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. 2011); 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 stressor claimed by a veteran is related to a 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 PTSD and that a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. "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 amended 75 Fed. Reg. 39843 (effective July 12, 2010)). 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 PTSD 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 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 veteran. By reasonable doubt is meant one that exists because of an approximate balance of positive and negative evidence that 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. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board has reviewed all of the lay and medical evidence in the Veteran's claims folder. The Board finds that the Veteran is competent to report the symptoms and impairments associated with his claimed PTSD. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (holding that lay statements may serve to support a claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability that are susceptible of lay observation). The Board has not discounted lay evidence regarding the Veteran's PTSD because it is lay evidence or because it was reported by the Veteran. See Kowalski, 19 Vet. App. at 171 (holding that a history given by a veteran that has not been found by the Board to be inaccurate is not a basis for discounting an opinion based on that history). That being said, the Board has an obligation to determine the credibility of all evidence, lay and medical. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (holding that the Board has the duty to assess the credibility and weight to be given to the evidence). The Board has considered all evidence of record as it bears on the question of service connection. See 38 U.S.C.A. § 7104(a) (West 2002 & Supp. 2011) ("Decisions of the Board shall be based on the entire record in the proceeding and upon consideration of all evidence and material of record"); 38 U.S.C.A. § 5107(b) ("Secretary shall consider all information and lay and medical evidence of record in a case"). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The United States Court of Appeals for the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's appeal. Service Connection for PTSD The Veteran essentially contends that he developed PTSD as a result of stressful traumatic experiences in service, which specifically include deaths due to enemy fire, an incident where he was almost killed by a grenade, and serving as a military policeman during a four-month deployment in Iraq during the Battle of Baghdad. The Veteran's DD Form 214 reflects that the Veteran's military occupational specialty was that of a military police officer and that the Veteran was deployed in support of Operation Iraqi Freedom with the 204th Military Police from March 2003 to July 2003. The Board finds that the evidence is at Veteran has been diagnosed with PTSD. In an August 2005 VA treatment record, the Veteran reported that he saw two individuals killed by gunfire while serving in Iraq, and also related an incident during which an Iraqi child brought he and some fellow service members a grenade that had been taped to a container of gas. The Veteran indicated that the gas could have eaten through the tape at any time, causing an explosion, and he believed that the child was paid by someone to bring the grenade to them. The Veteran reported that he and his fellow service members buried the grenade in the ground before it could explode. The Veteran stated that he realized how close he had been to injury or death at that moment. The Veteran indicated that he experienced nightmares about once or twice a month. In addition, the Veteran stated that he currently avoided crowds and news about the war, and experienced some hypervigilance. The Veteran indicated experiencing intrusive thoughts about the war. The Veteran stated that he did not feel as if he could talk about his war experiences with anyone who had not been through similar experiences. After performing a mental examination, the VA examiner diagnosed PTSD. In an August 2010 VA treatment record, the August 2005 VA examiner confirmed this diagnosis of PTSD. Subsequently, in a December 2010 VA treatment record, the Veteran told a different VA examiner that he had seen individuals fired upon, seen multiple casualties, and watched fellow service members killed in explosions during service. He recalled how his superiors would tell him that he would not be alive by the end of the day as a way of making him vigilant. The Veteran reported experiencing hypervigilance, avoidance, and disturbing recollections following service. The Veteran believed that the medication he was taking currently and the coping skills he had learned from the August 2005 VA examiner had aided him in dealing with his symptoms. After a mental examination, the VA examiner diagnosed PTSD. By contrast, a March 2010 VA examination resulted in no diagnosis of PTSD. The March 2010 VA examiner noted reviewing the claims file prior to writing the report and interviewing the Veteran. During the interview, the Veteran reported that the psychiatric medication he had been taking for his diagnosed PTSD symptomatology had been working as he was not as irritable as he had been previously. The Veteran stated that he did not like to leave the house, as he would be scared of everyone around him. He stated that, during his deployment in Iraq, his staff sergeant often would tell his unit at their general briefing that they were going to die that day. When describing his PTSD symptoms, the Veteran indicated that he would experience nightmares since 2004 that occurred twice a month, and that during these nightmares, he dreamed that he was either being sent back to Iraq or that he was back in service. The Veteran stated that during the day he avoided watching news about the war. He indicated that he was hypervigilant, but that he did not startle easily. When asked what specific experiences he thought about from his service in Iraq, the Veteran explained that he did not think about any particular experience. After the mental examination, the March 2010 VA examiner reported finding no evidence of a psychiatric disorder. The VA examiner assessed that the Veteran had neither intrusive thoughts nor nightmares about any particular in-service incident; therefore, the VA examiner reported that he found insufficient evidence to warrant a PTSD diagnosis. The VA examiner indicated that the Veteran also did not have impairment in thought processing or communication that might be indicative of another psychiatric disorder. In a December 2010 addendum to the March 2010 VA PTSD examination report, the March 2010 VA examiner indicated reviewing additional treatment evidence, including the December 2010 VA treatment record indicating a diagnosis for PTSD. Having done so, in recalling the March 2010 interview, the VA examiner again noted that the Veteran had not reported thinking or having nightmares about any particular in-service incident. Considering the Veteran's reported symptomatology and the Veteran's ability to graduate college post-service, the March 2010 VA examiner again stated that he did not have sufficient evidence to warrant a PTSD diagnosis. The Board finds that the aforementioned August 2005 VA treatment record, the March 2010 VA PTSD examination report and December 2010 addendum, and the December 2010 VA treatment record are competent and credible evidence in this matter. The Board notes that the March 2010 VA PTSD examiner wrote his report, finding that the Veteran did not have PTSD, after a review of the claims file. By contrast, the August 2005 and December 2010 VA examiners, who both diagnosed PTSD, did not note reviewing any medical records prior to writing their findings; however, as will be explained below, the Veteran's claimed in-service stressors involving fear of enemy military and terrorist activity are consistent with the places, types, and circumstances of the Veteran's service as a military police officer in Iraq. According to 38 C.F.R. § 3.304(f), the August 2005 and December 2010 VA examiners did not need to review the claims file in order to diagnose PTSD based upon the Veteran's credible in-service stressor experiences. In a November 2010 Supplemental Statement of the Case, the RO found that the August 2005 VA examiner's opinion was of no merit because the August 2005 VA examiner was a M.D. and not a psychiatrist; however, medical professionals with medical doctorates may be practicing psychiatrists. In fact, in November 2010, the Veteran submitted evidence indicating that the August 2005 VA examiner was both a board-certified psychiatrist and a board-certified cardiologist. Moreover, the December 2010 VA examiner, who also diagnosed PTSD, referred to himself as a psychiatrist. As the record contains dueling credible opinions from qualified mental health professionals, the Board finds that the evidence is in relative equipoise as to whether the Veteran has diagnosed PTSD. Accordingly, the Board will resolve reasonable doubt in the Veteran's favor on the question of whether the Veteran has a diagnosed disability of PTSD. The Board next finds that the evidence shows that the reported stressors are related to the Veteran's fear of hostile military or terrorist activity during service in Iraq, and are consistent with the places, types, and circumstances of such wartime service. The Veteran reported watching the deaths of fellow service members due to gunfire explosions, and being nearly killed himself due to an incident involving a live grenade during service in Iraq. Although the RO did not seek to procure the Veteran's service personnel records in this matter, entries in the Veteran's service treatment records indicate deployment and return from service in Iraq in keeping with that noted on the DD Form 214. In order to assist VA in confirming his stressors, the Veteran sent copies of an Army history indicating that his unit was deployed to Baghdad during the Battle of Baghdad. The Board finds that the Veteran's stressor experiences are consistent with those a military policeman stationed in Baghdad during the Battle of Baghdad would be expected to experience; therefore, the Board finds that the reported stressors are related to fear of hostile military or terrorist activity in Iraq and are consistent with the places, types, and circumstances of the Veteran's service. The Board further finds that the Veteran's PTSD stressors are adequate to support a diagnosis of PTSD, and that the PTSD symptoms are related to the reported stressors. In the August 2005 VA treatment record and the December 2010 VA treatment records, respective VA examiners diagnosed PTSD based on the Veteran's reported stressor experiences; therefore, under 38 C.F.R. § 3.304(f)(3), the Veteran's PTSD stressors are adequate to support a diagnosis of PTSD and the PTSD symptoms are related to the claimed stressors. Considering the respective diagnoses of PTSD based on adequate in-service stressors related to fear of hostile military or terrorist activity and, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs