Citation Nr: 1307695 Decision Date: 03/07/13 Archive Date: 03/11/13 DOCKET NO. 05-31 500 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to December 1952. Service in the Republic of Korea is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied the Veteran's claim. Following multiple remands, the Board issued a March 2011 decision denying the Veteran's claim. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (the Court). In December 2011, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Remand. An Order of the Court dated December 14, 2011 granted the motion, vacated the Board's March 2011 decision, and remanded the case to the Board. In July 2012, the Board additionally remanded the Veteran's claim for additional development. The VA Appeals Management Center (AMC) issued a supplemental statement of the case (SSOC) in January 2013. The case has returned to the Board for further appellate proceedings. 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). FINDINGS OF FACT 1. The Veteran participated in combat. 2. The medical evidence of record demonstrates that the Veteran does not meet the diagnostic criteria for PTSD. 3. The Veteran has an acquired psychiatric disorder, to include generalized anxiety disorder, that is as likely as not related to his active duty service. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C.A. §§ 1101, 1110, 1154(b), 5107 (West 2002 & West Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012). 2. Resolving all doubt in the Veteran's favor, an acquired psychiatric disorder, to include generalized anxiety disorder, was incurred in his active service. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). As will be discussed in further detail in the following decision, the Board finds that the competent and probative evidence of record supports the grant of service connection for generalized anxiety disorder. This award represents a full grant of the issue on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. 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 injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link 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 (1997). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the alleged stressor is not combat-related, then the veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). In this matter, the AMC was able to verify the Veteran's combat service. See the AMC memorandum dated November 2012. Accordingly, the Board concedes the Veteran's engagement in combat during his service in the Republic of Korea. His claimed stressors are deemed confirmed without independent verification. See 38 U.S.C.A. § 1154(b) (West 2002) & 38 C.F.R. § 3.304(d) (2012)(which stipulate that VA is required to accept a combat veteran's statements as to injuries sustained in combat, so long as the statements are consistent with the circumstances, conditions, or hardships of the veteran's service and there no is clear and convincing evidence to the contrary). In any event, however, the Board notes that recent regulatory amendments have changed the evidentiary standards regarding stressors based on a veteran's fear of hostile military or terrorist activity. See 38 C.F.R. § 3.304(f)(3). Under the recent amendments, lay evidence may establish an alleged stressor where: 1) the stressor is related to a veteran's fear of hostile military or terrorist activity; 2) a VA psychiatrist, VA psychologist, or VA-contracted psychiatrist or psychologist, 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; 3) the stressor is consistent with the places, types, and circumstances of a veteran's service; and 4) there is no clear and convincing evidence to the contrary. Fear of hostile military or terrorist activity occurs where 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 provisions of this amendment apply to applications for service connection for PTSD that were appealed to the Board before July 13, 2010, but which have not been decided by the Board as of July 13, 2010. See Stressor Determinations for Posttraumatic Stress Disorder, 75 Fed. Reg. 39,843, 39,852 (July 13, 2010), corrected by 75 Fed. Reg. 41,092 (July 15, 2010). As such, they are applicable to this case. Further, it appears that, in this case, the Veteran's stressors are related to his fear of hostile military or terrorist activity during his service in the Republic of Korea. Specifically, and in this regard, the Board notes that the Veteran reports that he and his artillery battalion were repeatedly exposed to ambush and enemy fire. See the Veteran's statements dated August 2003, April 2009, and June 2009. Importantly, however, the critical element is whether at any time during the current appeal the Veteran has been diagnosed with PTSD. For the reasons set forth in the following decision, the Board must answer this question negatively. However, as will be explained below, the Board finds that the evidence of record supports a finding that the Veteran's currently diagnosed acquired psychiatric disorder, specifically, generalized anxiety disorder (GAD), is due to his military service. Initially, the Board notes that the majority of the Veteran's service treatment records (STRs) were determined to have been destroyed in the 1973 National Personnel Records Center (NPRC) fire. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of- the-doubt rule. See O'Hare, 1 Vet. App. at 367. The Board's analysis of the Veteran's claim has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. See Russo v. Brown, 9 Vet. App. 46 (1996). Moreover, there is no presumption, either in favor of the Veteran or against VA, arising from missing records. See Cromer v. Nicholson, 19 Vet. App. 215, 217-218 (2005) (the Court declined to apply an "adverse presumption" where records have been lost or destroyed while in Government control which would have required VA to disprove a claimant's allegation of injury or disease in service in these particular cases). Accordingly, the Board will proceed with its analysis. The Veteran was afforded a VA examination in April 1999 at which time he was not diagnosed with a psychiatric disorder. He was subsequently afforded a second VA examination in August 2002 and was diagnosed with GAD at that time. The examiner further noted that the Veteran "has had no prior psychiatric treatment, and was not treated at any time while he was in the military for any psychiatric problems or an anxiety disorder, and therefore there is no reason for a service connection." Vet Center treatment records dated in July 2003 document a diagnosis of "PTSD, presumptive." In an August 2003 treatment note, Dr. R.P. indicated that the Veteran "suffers from PTSD." Private treatment records dated August 2003 and September 2003 document diagnoses of PTSD and anxiety. However, there is no indication in the July 2003, August 2003, or September 2003 treatment records that the Veteran met the DSM-IV criteria for PTSD, as is required under 38 C.F.R. § 3.304(f). In a January 2005 VA treatment record, the Veteran was diagnosed with PTSD where the treating VA physician opined that his "behavioral symptoms profile coupled with his unresolved combat experiences during the Korean War is consistent with a clinical picture of PTSD." See VA treatment record dated February 2005. Notably, it is unclear if this diagnosis was under the DSM-IV criteria. In September 2009, the Veteran was again afforded a VA examination as to his pending claim. The examiner noted that the Veteran reported stressors of traumatic combat experiences, which included intense fear, anxiety, and severe freezing weather during his military service. The examiner determined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD, but diagnosed him with GAD. The examiner opined that the Veteran was not treated during or post-service other than with mild medication from a primary care physician for anxiety symptoms and does not meet the full criteria for a diagnosis of PTSD. A VA addendum medical opinion was issued in February 2010 in which the VA examiner clarified that "[f]ollowing review of history and examination there is no history of a preexisted mental disorder or any pre-service trauma and, in my opinion, his anxiety disorder was the result of his combat service which did not meet full criteria for PTSD." Another VA addendum opinion was issued in June 2010 in which the VA examiner further explained, "[i]n my opinion, following review of records, I can not resolve this issue without resort[ing] to mere speculation that his present condition is at least as likely as not related to his cold weather exposure during his active military duty." Pursuant to the July 2012 Board Remand, the Veteran was afforded another VA examination as to his claimed acquired psychiatric disorder to include PTSD. The examiner interviewed and examined the Veteran, thoroughly reviewed his medical history, and concluded that he does not meet the full criteria for PTSD. The examiner did confirm the diagnosis of GAD. With respect to the Veteran's military service, the examiner concluded that the Veteran's GAD "was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness." The examiner explained that "[b]ased on the records reviewed and evaluation of his current mental condition of GAD is not specifically due to his cold weather exposure in [the] military." Critically, however, the VA examiner did not opine as to whether the Veteran's currently diagnosed GAD is due to his verified military combat stressors. With respect to the claimed PTSD, the Board recognizes that the post-service medical records contain diagnoses of PTSD. See the private treatment records July 2003, August 2003, or September 2003 & the VA treatment record dated January 2005. Critically, however, these diagnoses were not rendered upon the application of the DSM-IV criteria as is required to sustain a claim of entitlement to PTSD pursuant to 38 C.F.R. § 3.304(f). As has been previously discussed herein, subsequent psychiatric evaluations, including the September 2009 and December 2012 VA examinations, specifically concluded that the Veteran does not meet the DSM-IV criteria for PTSD. Thus, the Board finds that at no time during the current appeal has the Veteran been diagnosed with PTSD, pursuant to the application of DSM-IV, and that therefore service connection for PTSD cannot be awarded. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (in the absence of proof of a present disability, there can be no valid claim) & McClain v. Nicholson, 21 Vet. App. 319 (2007) (which stipulates that a service connection claim may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). With respect to the claimed GAD, the Board observes that, although the recent October 2012 VA examiner did not address whether the Veteran's GAD is due to his verified combat stressors, this question was previously addressed in the February 2010 VA addendum medical opinion. Crucially, as set forth above, the February 2010 VA examiner specifically found that the Veteran's GAD was the result of his combat service. The February 2010 VA addendum opinion appears to have been based upon the examiner's prior interview of the Veteran, a thorough review of the claims file including the Veteran's contentions, and thoughtful analysis of the Veteran's entire history. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Therefore, based on the evidence of record, the Board finds that service connection for an acquired psychiatric disorder to include GAD is warranted. In sum, the Board finds that the Veteran does suffer from an acquired psychiatric disorder, to include GAD, which has been sufficiently linked to his wartime experiences. Given the aforementioned, the Board finds that the evidence is at least in equipoise as to the matter of whether the Veteran has an acquired psychiatric disorder, to include GAD, that is related to his military service. The benefit of the doubt rule is therefore for application. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012). Accordingly, and resolving all doubt in the Veteran's favor, the Board finds that service connection for a psychiatric disorder characterized as GAD is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.303(b). ORDER Entitlement to service connection for PTSD is denied. Entitlement to service connection for an acquired psychiatric disorder, to include generalized anxiety disorder, is granted. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs