Citation Nr: 1300410 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 10-27 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from October 2000 to February 2001 and from September 2001 to October 2006. He had service in Iraq from March to November 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. This appeal was previously before the Board in April 2012. The Board remanded the claim so that additional treatment records could be requested. The case has been returned to the Board for further appellate consideration. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is at least an approximate balance of positive and negative evidence as to whether the Veteran has a current diagnosis of PTSD as a result of his military service. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, his PTSD was incurred during his military service. 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(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In light of the favorable decision herein as to entitlement to service connection for PTSD, the Board finds that any deficiencies in notice or assistance were not prejudicial to the Veteran. Laws and Regulations The Veteran has claimed entitlement to service connection for PTSD, which he essentially contends developed as a result of his in-service experiences. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in- service stressor(s). 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(1); see also, 38 U.S.C.A. § 1154(b). The ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe, or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Mere service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Service department evidence that a veteran engaged in combat or that a veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. VAOPGCPREC 12-99 (Oct. 18, 1999). Furthermore, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: (f)(3) 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 [PTSD] 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. 75 Fed. Reg. 39845 (July 13, 2010). The provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010 but have not been decided by the Board as of July 13, 2010. Factual Background and Analysis As noted above, the Veteran was denied entitlement to service connection for anxiety in an unappealed March 2007 rating decision. He filed the current claim of entitlement to service connection for PTSD in May 2009. He did not initially respond to requests for stressor information, and he did not provide any statements regarding his PTSD prior to the August 2009 rating decision on appeal. In October 2009, the AOJ again requested information regarding the Veteran's PTSD, and provided an additional stressor statement VA Form 21-0781. In November 2009, the Veteran returned the form, and noted that in approximately March of 2003, during a deployment to Iraq, he was under the "constant barrage of mortars, IEDs, and small arms fire." He also reported suicide bombers, grenade attacks, and additional fire upon his convoy. He stated he had dreams of rolling over bodies, and seeing the faces of his own children. He additionally reported a Sergeant Aguilar was wounded in action in May or June of 2003 in Iraq, although he did not provide details of the injury. The AOJ requested verification of the Veteran's statements regarding his experiences in Iraq and the injury or death of Sergeant Aguilar from the Defense Personnel Records Information Retrieval System (DPRIS). In December 2009, DPRIS responded that there were no records of casualties from the 502nd Engineer Company in 2003. The 502nd Engineer Company patrolled the Tigris River in Tikrit, Iraq near a floating river, but the information did not indicate a base location for the unit. The unit was not recorded as in any attacks or incidents from March to June 2003. DPRIS noted historical information regarding attack and incident files were incomplete for the period between May and October 2003, but that available records did not show that the unit was involved in any attacks or incidents. In March 2010, the AOJ issued a memorandum finding of a lack of information to corroborate the Veteran's reported stressors. Service treatment records include his enlistment examination, where he was noted to have a normal psychiatric evaluation and he denied a history of nervous trouble. A post-deployment health assessment from August 2003 noted the Veteran was "in theater" from March 2003 and would leave at the end of September 2003 (His DD 214 notes he left Iraq in November 2003). He noted he was deployed to Kuwait and arrived in Tikrit, Iraq in late April 2003. He indicated he was not suffering from nightmares, intrusive thoughts or a feelings of detachment as a result of a frightening/horrible/upsetting experience in the past month. He did note that he was constantly on guard, watchful or easily startled as a restful of a frightening/horrible/upsetting experience in the past month. He indicated he did not intend to seek counseling for his mental health. By June 2006, the Veteran stated he "seemed to be on edge a lot" since he returned from Iraq. A July 2006 Medical Evaluation Board summary included a diagnosis of anxiety, but did not include information regarding the onset, treatment or initial diagnosis of anxiety. A June 2006 treatment record list of "problems" includes "no psychiatric diagnosis or condition on Axis I;" however, there are no treatment records which explain this notation. VA treatment records contain an October 2006 positive PTSD screening based upon the Veteran endorsing nightmares, intrusive thoughts, and hypervigilence. In December 2006, the Veteran was afforded a VA mental health examination in conjunction with his anxiety claim. After an interview with the Veteran and a review of his service treatment records and claims file, the VA examiner did not diagnose an Axis I or Axis II psychiatric disability. During the examination, the Veteran repeatedly reported that he did not feel he had a psychiatric problem, and that his only symptom was hypervigilence. He denied panic attacks, depression, mania, psychosis, and symptoms of PTSD. He also denied substance abuse problems. In September 2009, private psychologist S.C. diagnosed the Veteran with PTSD "related to his experiences in Iraq...include[ing] revisiting his experiences in the form of dreams, elevated arousal seen in difficulty initiating sleep and in an elevated startle response and elevated alertness to potential environmental threats. While undoubtedly a source of some distress for him, there is no indication that it has been problematic for him with respect to functioning in social, work or family life." Dr. S.C.'s neuropsychological evaluation report includes the results of several psychological tests and a short social and work history. The evaluation report does not include specifics regarding the Veteran's alleged stressful incidents in service. In November 2010, the Veteran was afforded a VA PTSD examination. Following a review of the claims file and interview with the Veteran, the examiner diagnosed anxiety disorder, not otherwise specified. The examiner noted that the September 2009 neuropsychological evaluation report "diagnosed PTSD without even remotely justifying the full criteria for the diagnosis. As such, it should be afforded little consideration." The examiner noted the Veteran had complaints of anxiety in service, but that the records were not specific enough to allow a determination of whether his current condition is similar to his in-service complaints. The examiner ultimately opined it was less likely than not that the Veteran's current anxiety was related to service because he reported symptom onset significantly after military service. The Veteran's history included information regarding his employment as a corrections officer and a history of being shot by intruders who were never apprehended; thus, the examiner felt that his symptoms of hypervigiliance seemed "reasonable." During the examination, the Veteran reported seeing injured and dead children. Later he would dream of turning over the bodies of the dead children and see the faces of his own children. He additionally reported "frequent exposure to combat stressors, including mortars, small arms fire, etc." and he endorsed feelings of "helplessness associated with weapons malfunctions, incoming mortars, etc." Lastly, he reported that a soldier named Aguilar was shot by a sniper while they were taking trash to a dump site, and that the soldier eventually died from his wounds after being evacuated for treatment. The remainder of the Veteran's VA treatment records, as requested by the April 2012 Board remand, are available in Virtual VA. In October 2011, the Veteran sought to establish care with the VA, and during his initial assessment he reported he saw combat, fire fights, a child blown up, and had two people die in his arms. He was provisionally diagnosed with depression and anxiety, and to rule out PTSD. He reported to a different care provider on the same day that he had experienced a blast or explosion which left him dazed, confused and "seeing stars" during service. Attempts to schedule him for follow-up treatment were ignored. In November 2011, the Veteran's wife contacted the Lexington VAMC requesting a letter stating the Veteran suffered from PTSD to help him avoid "charges" related to an unexplained incident at work. The VA staff physician stated he did not feel comfortable providing such a letter based on a single encounter in October 2011 "in which [the Veteran] was less than forthright." In December 2011, the Veteran reported that his company was taking over a north Iraqi airfield near Tikrit in 2003 when a fighter jet scared "the enemies...[and] caused a large blast wave that knocked the [Veteran's] whole company down." He also reported that a mortar hit outside an open window of a marble bathhouse while he was sleeping 20 feet away. A VA psychiatrist diagnosed opioid dependence (narcotic pain medication associated with his back disability). Also in December 2011, the Veteran was provided a psychiatric consultation following a request for PTSD treatment without a diagnosis. He reported injuring his back in service and suffering from problems with excessive use of opiates/narcotics. He reported his mood varied over the last couple of years, ranging from easily agitated to overly vigilant. He described a turbulent childhood, and a legal history due to "altercations" with sheriff's deputies. Following a mental status examination he was assessed with a mood disorder, rule out substance-induced mood disorder and opiate dependence. In March 2012, the Veteran met the DSM-IV criteria B, C, and D for a diagnosis of PTSD based on a self-report of symptoms. He endorsed disturbing memories and dreams, and high levels of avoidance, sleep disturbances, and irritability. In April 2012, the Veteran was provided a full psychiatric initial evaluation conducted by a VA psychologist. He described symptoms of hypervigilence, nightmares, and an aversion to crowds. He described a "feeling of fear on patrol in Iraq and indicated that he feels scared in his dreams, just like he did then." When asked to describe the stressful events in service, he stated that the most stressful thing was when a small boy ran toward a checkpoint with explosives strapped to him, and blew up within sight of the Veteran. He also reported walking through towns and seeing children burnt and screaming and crying. He also reported exposure to enemy fire. He additionally reported that his friend was shot and killed when they were taking trash to a burn pit. He reported mortars would come into the camp grounds. Post-military, the Veteran reported being shot in the leg when he confronted two men who were on his property. The psychologist noted that while the Veteran was not diagnosed with a mental health disorder during his 2006 VA examination, his complained of significantly more symptoms during this evaluation. The psychologist did not provide a diagnosis subsequent to the evaluation; however, in May 2012, she diagnosed PTSD and opoid dependence. From May to July 2012, VA treatment records contain diagnoses of opioid dependence only from a VA psychiatrist and diagnoses of PTSD and opioid dependence from the April 2012 psychologist. A July 2012 VA record noted that the Veteran's case was "staffed by the clinical team, who concurred on diagnoses of PTSD and opioid dependence. The Veteran additionally listed his friend who was killed in service as "David." A review of a list of casualties from Operation Iraqi Freedom from 2003 does not list anyone named 'David Aguilar.' In fact, no one with the last name Aguilar died in 2003. There were, however, 18 casualties in Tikrit, Iraq in 2003. See http://www.cnn.com/SPECIALS/war.casualties/index.html; see also http://www.fallenheroesmemorial.com/oif/alphabetical.php. In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). T he Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board acknowledges that the Veteran is competent to give evidence about what he experienced. See Layno v. Brown, 6 Vet. App. 465 (1994). Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 7 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, supra (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence.) Here, the Board is concerned with the credibility of several of the Veteran's reports regarding in-service experiences. On his November 2009 stressor information form he indicated someone named Aguilar was wounded during service, but did not provide any additional details. He also reported seeing the bodies of dead children. Later, the Veteran reported the death of his friend David Aguilar, whose dog tags he carried around. DPRIS found that no one with the name Aguilar died in 2003, and the Board's additional searches of Iraq War casualties' listings supports that no one named "David" or "Aguilar" died in Tikrit, Iraq (where the Veteran served) in 2003. Additionally, in October 2011 the Veteran began reporting that he was involved in two explosions during his service in Iraq. He later reported that his entire company was concussed following an explosion. DPRIS found no information of incidents with the Veteran's unit; however, attack and incident files are incomplete. The Veteran's service treatment records likewise, do not include any complaints of concussive symptoms, to include his post-deployment questionnaire. Nevertheless, while corroboration of these specific events could not be obtained, the Board notes that his reports of small arms fire, IEDs and grenade attacks on convoys are consistent with the places, types, and circumstances of the Veteran's service. Of record is a September 2009 private psychologist's diagnosis of PTSD as a result of his service, a November 2010 VA examiner's diagnosis of anxiety not related to his service, and an April 2012 VA psychologist's diagnosis of PTSD as a result of his in-service stressors. In contrasting these opinions, the Board notes the United States Court of Appeals for Veterans Claims (Court) has stressed that it is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). While the September 2009 diagnosis holds some weight, as the Veteran's stressor has not been corroborated and does involve a fear of hostile military or terrorist activity, then the Board's focus is on the diagnoses of the VA providers pursuant to 38 C.F.R. § 3.304(f). Here, the November 2010 VA examiner had access to the Veteran's claims file and then-available VA treatment records. The April 2012 VA psychologist did not have access to the Veteran's claims file, but had access to ongoing VA treatment records. The April 2012 VA psychologist's diagnosis of PTSD was also supported by a "clinical team." This decision therefore turns on whether the April 2012 diagnosis of PTSD is based upon the stressors of small arms fire, IEDs, grenade attacks, etc. which are consistent with the circumstances of the Veteran's service or if the diagnosis is based upon the Veteran's other reported stressors of a friend dying in front of him, having two people die in his arms, being involved in two explosions, and seeing a child suicide bomber, which the Board does not find credible. Based on the location of the Veteran's service, and the time when he was serving, as well as research into Tikrit in 2003 and the 502nd Engineer Brigade, the Board finds that his complaints of small arms fire, IEDs and grenades are consistent with the circumstances of his service. Beginning in service the Veteran has reported hypervigilence after returning from Iraq. He reported to both VA providers that his hypervigilence was in response to a feeling of helplessness in Iraq. As the April 2012 VA psychologist based her diagnosis of PTSD, at least in part, on his reports of small arms fire, mortar attacks, IEDs, etc., the Board finds that her findings place the evidence in equipoise as to whether the Veteran currently has PTSD related to military service. The claims file does not contain clear and convincing evidence to contradict that the small arms fire, grenades, mortar attacks, etc. used, in part, to support a diagnosis of PTSD, did not occur. As such, the Veteran is entitled to the benefit of the doubt and service connection may be granted. In short, in light of the Veteran's service Tikrit, Iraq, his multiple current diagnoses of and treatment for PTSD, and the VA medical opinion linking his current PTSD, in part, to stressors consistent with the circumstances of his service, the Board further concludes that service connection is warranted. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs