Citation Nr: 1306357 Decision Date: 02/25/13 Archive Date: 03/01/13 DOCKET NO. 10-45 924 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Paul M. Goodson, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Fields, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1965 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified before the undersigned via a videoconference hearing at the RO in April 2012, and a transcript of that hearing is associated with the claims file. All pertinent documents in the Veteran's Virtual VA file (a highly secured electronic storage system) are also in the paper file. The Veteran's representative has raised the issue of entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities (TDIU). See attachment to VA Form 9, Board hearing transcript. However, as this issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over it. Therefore, it is referred to the AOJ for appropriate action. FINDINGS OF FACT The Veteran has currently diagnosed PTSD and related depression that has been linked by a VA psychologist to in-service stressors that are consistent with the circumstances of his service and are related to a fear of hostile military activity. CONCLUSION OF LAW The criteria for service connection for PTSD and related depression have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board's decision herein to grant service connection for PTSD with related depression constitutes a full grant of this benefit sought on appeal. Therefore, no further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Further, to be entitled to service connection for PTSD, the record must generally include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). VA regulations generally provide that, if the evidence of record shows that a veteran "engaged in combat with the enemy," or there is a diagnosis of PTSD during service, then the veteran's lay testimony alone is enough to establish the occurrence of the in-service stressor if such stressor is consistent with the circumstances of his or her service. See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(f) (providing for relaxed evidentiary standards where a veteran engaged in combat); 74 Fed. Reg. 14, 491 (March 31, 2009) (amending 38 C.F.R. § 3.304(f) in cases where PTSD is diagnosed during service). Prior to July 13, 2010, if these conditions were not met, then a veteran's lay evidence alone was not sufficient, and other corroborating evidence was necessary if a stressor could not be verified. See Daye v. Nicholson, 20 Vet. App. 512, 515 (2006); Cohen, 10 Vet. App. at 142. For claims pending on or after July 13, 2010, VA regulations allow for service connection where PTSD has been linked by a VA psychiatrist or psychologist to a reported stressor that is related to a fear of hostile military or terrorist activity, consistent with the types, places, and circumstances of the Veteran's service. In such a case, lay testimony is sufficient to establish the stressor, without the need for verification. These amended provisions apply to all claims that are received or are pending before VA on or after July 13, 2010. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39,843 (July 13, 2010), with correcting amendments at 75 Fed. Reg. 41,092 (July 15, 2010). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When all of the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim will be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran contends that he currently has PTSD and depression, due to several stressful incidents during service, primarily while in Vietnam. There was no diagnosis of PTSD during service, and none of the reported stressors is verifiable based on the information provided. Further, the evidence does not establish that the Veteran engaged in combat with the enemy for VA purposes. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Veteran's military occupational specialty was engine and power repairman or mechanic, and he did not receive any awards or decorations indicating combat service. See DD Form 214. Nevertheless, the Board finds that the Veteran's reported stressors are generally consistent with the circumstances of his service in a combat environment. The Veteran states that he could not handle hearing the screams of soldiers injured by napalm and mortar fragments while he was hospitalized in 1966 for alcohol treatment. See, e.g., hearing transcript, March 2009 VA treatment record, VA examination report. Service treatment records confirm that he had inpatient treatment for nearly a week while in Vietnam in September 1966. It is conceivable that he would have seen and heard the cries of severely injured soldiers at that time. Further, several of the reported stressors are related to a fear of hostile military activity. Specifically, the Veteran has reported being afraid for his life while guarding the ammunition dump, including during frequent "high alert" nights and due to explosions of ammunition, and not knowing if there were enemies nearby. Although the Veteran has denied being directly under fire, he also testified to being aware of or exposed to small arms fire while traveling in a convoy. See, e.g., hearing transcript, December 2008 VA treatment record, VA examination report. The Veteran is competent to report these incidents, and there is no evidence of record to indicate that his statements are false. Therefore, under currently applicable regulations, the Veteran's lay statements as to these events are sufficient to establish their occurrence for the purposes of his PTSD claim. No psychiatric abnormality was noted on the Veteran's February 1965 service entrance examination. Although the Veteran states that he was treated for alcohol abuse in 1966 (and there is evidence of general inpatient treatment in September 1966), there is no specific evidence of psychiatric treatment or diagnosis, to include PTSD, in the Veteran's service treatment records. There are several instances of treatment for stomach problems, and the Veteran is currently service-connected for gastric ulcer. It does not appear that a separate request was made for any mental health service treatment records. During a December 1967 examination for separation, the Veteran denied psychiatric symptoms including depression or excessive worry, trouble sleeping, or nervous trouble any sort. He also denied any drug or narcotic habit or excessive drinking habit. No clinical psychiatric abnormality was found. The Veteran certified that there had been no changes in a February 1968 statement, shortly before discharge from active duty. Nevertheless, the Veteran states that he was greatly bothered by the above-summarized events during service, and that he has had continuous symptoms since service. He states that he self-medicated with alcohol and illicit drugs for many years, and that his symptoms have begun to improve since starting on psychiatric medications and group therapy through VA and the Vet Center in 2008 or 2009. In statements dated in October 2009, the Veteran's mother and a friend since childhood indicated that the Veteran's personality changed after he returned from Vietnam. The friend indicated that the Veteran frequently appeared agitated and depressed, and this progressed over the years. The Veteran's mother stated that he began to use alcohol and drugs heavily after service, and he had problems with his marriage and employment, as well as depression for many years. Also in October 2009, the Veteran's wife and daughter indicated that he had problems with depression, anger, and irritability, with frequent mood swings. The Veteran's wife stated that he had been having flashbacks, depression, and nightmares throughout their relationship, and his symptoms had improved some since he started treatment. In a December 2008 VA treatment record, the Veteran indicated that this was his third wife, and that they had been together for 35 years and married for 10 years. VA treatment records dated from 2002 forward have been obtained, as well as some records from prior years, as summarized below. The Veteran has also reported recent treatment at the Vet Center, but these were not requested or obtained. In September and October 2009, the Veteran reported receiving treatment for depression on one occasion in New York approximately 40 years earlier (or in approximately 1969). Those records have also not been requested or obtained. In a June 1974 VA treatment record, the Veteran reported being a heroin addict in Vietnam and having stomach problems for years, including in his childhood. He also reported having an alcoholic binge in service with stomach problems. The Veteran stated that he was under a great deal of stress at the time of treatment because gas prices were high and it was difficult to make profits as an independent trucker driver. He was noted to respond fairly well to anti-anxiety treatment. Similarly, in an October 1974 VA examination for a prior claim, the Veteran reported that his stomach sometimes felt tight and nervous, and it hurt whenever he felt tense. Psychiatric and personality evaluation was found to be normal. The Veteran received inpatient treatment for substance abuse at the Fayetteville VA hospital from January 9 to February 7, 1989. A discharge summary was obtained, which indicates an extensive history of heroin and cocaine abuse, as well as alcoholic gastritis. The Veteran had been transferred from the medical ward and successfully completed the substance abuse program. The full treatment records have not been obtained, and there is no indication of whether he complained of problems related to service or other psychiatric symptoms at that time. During a July 2002 Agent Orange evaluation, the Veteran reported that he drank heavily during service and for several years after returning from Vietnam, but that he quit drinking completely approximately 10 years ago (or around 1992) and rarely drank at the time. He also indicated that he acquired the habit of using marijuana and IV heroin while in Vietnam but stopped using those drugs in 1980. The Veteran denied any prolonged depression, anxiety, sleep disruption, suicidal ideation, or violent behaviors. No psychiatric disorder was diagnosed at that time. VA treatment records reflect that a March 2003 PTSD screen was negative. Several years later, in May 2008, a PTSD screen was positive. In a December 2008 VA diagnostic interview for PTSD, the Veteran complained of sleep problems, nightmares, flashbacks, depression, anger, irritability, problems with crowds, and seeing or hearing things that weren't there. He reported two unspecified disciplinary actions during service. The Veteran described flashbacks or nightmares of Viet Cong chasing and standing over him and shooting at the enemy, although he stated that these things never happened to him. The Veteran also reported being afraid while guarding the ammunition dump in service due to explosions and movements in the bushes, including one night when he tried to shoot but his weapon did not fire. He reported continuous symptoms since discharge from service in 1968, with very severe symptoms when he was abusing drugs (including heroin and marijuana) for 20-25 years and alcohol for 40 years. The Veteran also stated that he hurt his back in the past, which caused some depression and he began to abuse alcohol. In addition, the Veteran reported difficulties during childhood and adolescence, and that his grandfather who raised him committed suicide in 1979 after asking the Veteran for a pistol, which he gave him. The Veteran stated that he was now on his third marriage, and his first marriage had last 3-4 years with problems beginning after he returned from service in Vietnam. The provider diagnosed adjustment disorder mixed with anxiety and depression. In a January 2009 VA mental health evaluation, the Veteran again complained of nightmares, as well as variable anxiety and depression. He stated that he had been sober for six years, and the nightmares were worst when he abused drugs in the past. The Veteran reported last using cocaine six years ago, and that he continued smoke marijuana regularly. The Axis I diagnosis was depression disorder NOS, rule out PTSD versus factitious disorder with psychological symptoms. The Veteran was also noted to have antisocial personality disorder under Axis II. In March and June 2009, VA providers noted diagnoses of major depressive disorder and PTSD. In group psychotherapy records, such as in May 2009, the diagnosis per referral source was adjustment disorder NOS. At the August 2009 VA examination, the Veteran reported being on disability from the Social Security Administration (SSA) for approximately 30 years (or since approximately 1969) due primarily to his back. He stated that he retired due to his back as well as psychiatric conditions of anxiety and substance abuse. Similarly, the Veteran testified in the Board hearing that he was on SSA disability for approximately 30 years until it was amended to age-based disability at age 66. Records from the SSA have not been requested or obtained. The VA examiner, a clinical psychologist, reviewed the claims file and noted diagnoses of PTSD and major depressive disorder in 2009, with recent VA outpatient treatment, as well as VA inpatient treatment in the 1980s for substance abuse. The Veteran reported heavy drinking and marijuana use during service, with legal or other problematic consequences. He also reported being arrested due to shooting someone while arguing over 30 years ago (or in approximately 1969 or earlier). The Veteran stated that he was now married for the third time after having many fights and distrust with the first two wives. The Veteran was noted to have a stable family environment, good peer relationships, and adequate performance in school prior to service. He reported unspecified combat experience with resulting feelings of intense fear, helplessness, and horror. After recording the current and past mental health symptoms, the VA examiner stated that the Veteran met the DSM-IV criteria for chronic PTSD and depressive disorder NOS. He stated that the depression was related to the PTSD and they were mutually aggravating. The primary stressors related to PTSD were noted to be hearing screams of napalm patients while in the hospital in service, small arms fire, and guarding the ammunition dump. In September 2009, the Veteran was admitted for 6 days of inpatient VA mental treatment due to nightmares and thoughts of hurting himself and others. He was diagnosed as having PTSD and recurrent major depressive disorder. In a January 2010 VA treatment session, the Veteran again reported seeing people that had been burnt with napalm while in the hospital in 1966, as well as having nightmares about training soldiers in 1967 and 1968, flashbacks and depression. The record contains some discrepancies in the reported timing of the Veteran's behavior and psychiatric symptoms. For instance, in an October 2009 statement, a friend since childhood stated that the Veteran had been popular among his peers and a positive role model prior to service. The Veteran also reported having a stable childhood, good peer relationships, and no problems in school during the August 2009 VA examination. In contrast, the Veteran reported in a December 2008 VA treatment session that he had a hectic childhood, he was raised by his grandfather as if his mother was his sister, his grandmother died when he was 10 years old, he was treated badly in school by other blacks due to being light-skinned, and he dropped out of high school. Additionally, the Veteran denied psychiatric symptoms several times over the years for treatment purposes, as summarized above, and a PTSD screen was negative in March 2003. Nevertheless, the Veteran is competent to report the timing of his observable mental health symptomatology, to include depression, anxiety, anger, irritability, increased drinking and drug use, after incidents during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Similarly, the other lay witnesses are competent to report observing the Veteran's behavior changes after he returned from service, as well as longstanding psychiatric symptoms. Although there are some discrepancies as to the timing of the Veteran's symptoms in the medical evidence of record as summarized above, the Board resolves doubt in the Veteran's favor and finds that the evidence generally establishes a continuing pattern of psychiatric symptoms since service. Further, the VA psychologist who provided the 2009 examination as well as other VA mental health professionals have diagnosed PTSD and related depression. The examiner also linked these disorders to the reported in-service stressors. The VA examiner linked the diagnoses to stressors that are consistent with the circumstances of the Veteran's service and Vietnam and are related to a fear of hostile military action. In sum, when resolving all reasonable doubt in the Veteran's favor, the elements required for service connection for PTSD with associated depression are all established. Accordingly, service connection for PTSD with related depression is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304(f). ORDER Service connection for PTSD and related depression is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs