Citation Nr: 1303376	
Decision Date: 01/31/13    Archive Date: 02/05/13

DOCKET NO.  09-07 770	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Seattle, Washington


THE ISSUE

Entitlement to service connection for a chronic acquired psychiatric disability, to include post-traumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	National Association for Black Veterans, Inc.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. N. Moats, Counsel


INTRODUCTION

The Veteran had active service from August 1975 to June 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, that, in pertinent part, denied entitlement to service connection for PTSD.  The Board remanded this case for further development in May 2011.

In the prior remand, the Board recharacterized the issue on appeal as set forth on the front page of this decision in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that a claim for service connection might include any disability that may reasonably be encompassed by several factors, including a description of the elements in the claim, symptoms the claimant describes, or information that the Secretary of VA submits as part of the claim. 

The Veteran provided testimony on his own behalf at a video conference hearing conducted in January 2011 before another Veterans Law Judge (VLJ).  A transcript of the hearing proceedings is of record and has been reviewed.  In October 2012, the Veteran was informed that the VLJ who conducted his hearing was no longer employed with the Board and afforded the Veteran an opportunity to appear at another Board hearing.  The letter notified the Veteran that if he did not respond within 30 days, the Board would assume he did not want another hearing.  To date, there has been no response from the Veteran.  Thus, the Board assumes that the Veteran does not want to appear at another hearing and, in turn, it may proceed with the decision on the merits.  


FINDING OF FACT

The Veteran's claimed stressors are consistent with the places, types, and circumstances of the Veteran's service in the Southwest Asia Theatre of Operations and a VA psychiatrist has confirmed that the Veteran's claimed stressors are adequate to support a diagnosis of PTSD.


CONCLUSION OF LAW

PTSD was incurred during the Veteran's active duty service.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R.  §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet.App. 183, 187 (2002).

In the instant case, there is no need to undertake any review of compliance with VCAA and implementing regulations in this case since there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran is being granted by this decision of the Board.  See generally 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  By letter dated in May 2008, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date.  He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection.


Analysis

The Veteran is seeking entitlement to service connection for an acquired psychiatric disability, to include PTSD.  Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R.  § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  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).

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.  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).  The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV).  

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.

The Veteran's DD 214 service personnel record shows that he was stationed in the Southwest Asia Theatre of Operation from December 1990 to May 1991.  In statements of record and at his Board hearing, the Veteran reported that he was a communications specialist and his unit supported an infantry unit.  Thus, he was right in the middle of combat operations in Iraq and witnessed blown out tanks, dead soldiers and fireballs in the sky.  He has further indicated that he was exposed to gunfire and nuclear/biological/chemical scares.  Under the new criteria, the Veteran's claimed stressors effectively include a fear for his life that is consistent with the places, types, and circumstances of the Veteran's service in the Southwest Asia Theatre of Operations as detailed in his service personnel record.  In turn, his lay testimony alone may establish the occurrence of the claimed in-service stressor.  

VA treatment records beginning in 2011 showed an assessment of rule out PTSD.  Significantly, after the Board's prior remand, in August 2011, the Veteran was referred for evaluation of his depression and rule out PTSD assessment.  After examining the Veteran and taking a thorough history, the Veteran was diagnosed with PTSD by a VA psychiatrist based on his service in the First Persian Gulf War.  Follow up VA treatment records continued to show a diagnosis of chronic PTSD.  

However, the Veteran was afforded a VA examination in September 2011 in which the examiner determined that the Veteran did not meet the criteria for PTSD. Rather, the examiner diagnosed the Veteran with depression and determined that it was at least as likely a result of military service based on the Veteran's report of depression symptoms in service.     

Based on the evidence of record, the Board finds that service connection for PTSD is warranted under the regulatory change to 38 C.F.R § 3.304.  Again, the Veteran's claimed stressors effectively include a fear for his life consistent with the places, types, and circumstances of the Veteran's service in Southwest Asia Theatre of Operations as detailed in his service personnel record.  His lay testimony alone may therefore establish the occurrence of the claimed in-service stressor.  

Nevertheless, the Board recognizes that there is conflicting medical evidence as to whether the Veteran meets the criteria for a diagnosis of PTSD.  The VA examiner found that he did not meet the criteria; however, a VA treating psychiatrist has confirmed that the claimed combat stressor is adequate to support a diagnosis of PTSD.  The Board is thus presented with conflicting evidence that is essentially in a state of equipoise as to the medical conclusions to be drawn.  In such situations, a decision favorable to the appellant is mandated by 38 U.S.C.A. § 5107(b).  The Board also finds it significant that even though the VA examiner did not diagnose PTSD, the examiner did find that the Veteran's depression symptoms were related to his military service.  

Accordingly, the Board finds that the Veteran does suffer from PTSD and that his PTSD has been sufficiently linked to wartime experiences.  In sum, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the statutory and regulatory criteria for entitlement to service connection for PTSD have been met.  

In addition, the VA examiner has attributed the Veteran's depression to military service.  Hence service connection is also warranted for depression.  See 38 U.S.C.A. § 5107(b).


ORDER

Service connection for PTSD is granted.  



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs