Citation Nr: 1308652 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 07-27 085 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder including posttraumatic stress disorder and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD John Francis, Counsel INTRODUCTION The Veteran served on active duty from June 1966 to October 1969. This appeal comes before the Board of Veterans' Appeals (Board) from January 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office. The Virtual VA paperless claims processing system contains additional VA outpatient treatment records that have been considered. FINDINGS OF FACT 1. The Veteran experienced several traumatic events in combat in Vietnam in 1967. 2. The competent, credible, and probative lay and medical evidence for and against a diagnosis of PTSD related to the combat events is in relative equipoise. CONCLUSION OF LAW The criteria for service connection for posttraumatic stress disorder have been met. 38 U.S.C.A. §§ 1110, 1154 (2002); 38 C.F.R. § 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board is granting in full the benefit sought 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. The Veteran served in the U.S. Marine Corps with service as a security guard at Marine Corps air facilities in the Republic of Vietnam from November 1966 to September 1967 and with an infantry unit in Vietnam in early September 1967. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110. 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). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); in certain circumstances, credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Under DSM-IV, a stressor is a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or event that involved actual or threatened death or serious injury, or threat to the physical integrity of self or others; and (2) the person's response involved intense fear, helplessness, or horror. A stressor must consist of an event during such service that is outside the range of usual human experience and such that would be markedly distressing to almost anyone, such as experiencing an immediate threat to one's life or witnessing another person being seriously injured or killed. It is the distressing event, not mere presence that constitutes a valid stressor. Zarycki v. Brown, 6 Vet. App. 91, 99 (1994). Service in a combat zone is stressful to some degree to all who are there, whatever their duties or experiences. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also VAOPGCPREC 12-99 (Oct. 18, 1999) (cited at 65 Fed. Reg. 6257 (2000)) ("the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C. § 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"). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy," as established by recognized military combat citations or other official records. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, the veteran's lay statements alone may establish occurrence of the claimed in-service stressor, in the absence of clear and convincing evidence to the contrary, as long as the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f); see Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). For claims that were appealed to the Board but not decided as of July 13, 2010, changes to the applicable regulations are in effect as follows. 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. 38 C.F.R. § 3.304 (f) (3); 75 Fed. Reg. 39,843 (Jul. 13, 2010) "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 occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). As the record showed that the Veteran has been diagnosed with depression as well as PTSD, VA must consider whether service connection is warranted for depression or any other disorders in addition to PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Service personnel and treatment records showed that the Veteran participated in a field operation with an infantry unit in early September 1967. After seven days in the field, the Veteran sustained a gunshot wound to the left index finger and was evacuated to a naval hospital in the United States where he underwent treatment for the finger injury until early December 1967. He was awarded the Purple Heart Medal. There was no mention of any mental, behavioral, or emotional symptoms. He was absent without leave from the hospital until July 1968 but was acquitted of misconduct by a special court martial in September 1968. He completed his enlistment at a Marine Corps base and received an honorable discharge with no further military treatment. The service records are silent for any symptoms, diagnoses, or treatment for a psychiatric disorder. The Board concludes that the Veteran was in combat and that the occurrence of the traumatic experiences involving a firefight, injury, and death of fellow Marines actually occurred as they are consistent with the award of the Purple Heart Medal and the circumstances of his service with an infantry unit in a combat operation in Vietnam in 1967. In November 1972, the Veteran submitted a claim for service connection for emotional and psychological symptoms that he self-treated with drug abuse on the battlefield. The Veteran reported that he no longer used drugs but continued to experience depression, anxiety, and impotence. The same month, a psychiatrist examined the Veteran and diagnosed an acute anxiety reaction and impotence associated with past drug addiction with no current withdrawal symptoms. The RO denied service connection for a nervous disorder in January 1973. Records of clinical care by a private psychiatrist starting in June 1994 showed treatment for symptoms of depressed mood, crying, insomnia, and unspecified nightmares. The psychiatrist noted that the Veteran had been working as a disaster recovery specialist for the Federal Emergency Management Agency (FEMA) and referred only to civilian work pressures and not to any event in military service. In June 1996, the psychiatrist completed two reports to FEMA with a diagnosis of major depression and predicted a full recovery. The psychiatrist noted that the disorder did not affect performance at work. In December 1999, the Veteran's FEMA employer noted that the Veteran's attendance and performance had degraded and was interfering with his duties. In February 2000, the Veteran was examined by a psychologist for the Social Security Administration (SSA). In a brief report, the psychologist noted that the Veteran had been receiving monthly mental health care since 1994 and was currently having difficulty with attention, cognition, and memory deficits. The Veteran was unable to accept criticism or maintain socially acceptable behavior. In February and June 2000, the private attending psychiatrist reported that the major depression caused by work stress was refractory to treatment and was incompatible with his employment duties. The Veteran displayed low energy, poor control of his emotions, became easily distracted, and could no longer drive an automobile because of anxiety. He was unable to cope with stress or family arguments and had poor cognitive processing capacity. There was no mention in any of the reports of events in service. The SSA granted disability benefits for major depression effective in November 1999. In December 2005, the Veteran began receiving VA mental health services. In an initial screening, a social worker noted that the Veteran had previously received treatment and medication for depression but no longer had access to private care. The Veteran submitted a claim for service connection for depression and for PTSD in January 2006. In February 2006, a VA PTSD screening was negative and a staff psychiatrist diagnosed major depressive disorder with no mention of events in service. In May 2006, the Veteran underwent a VA examination for PTSD. The examiner noted the Veteran's combat history and gunshot wound of the index finger that did not impose any immediate emotional impairment. The examiner noted the history of remote substance abuse and the Veteran's report of the onset of feelings of depression both after service and since starting his work at FEMA in 1989. The examiner diagnosed depressive disorder and polysubstance abuse in long term remission. In July 2006, the RO denied service connection for a depressive disorder because the record did not show that his current disorder first manifested in service or was caused or aggravated by any aspect of service. In January 2007, the RO denied service connection for PTSD because the record did not contain diagnosis of PTSD. The RO did not address the diagnosis and origin of depression. The RO did not consider either claim as a petition to reopen the 1972 disallowed claim. In a March 2007 report, the Veteran's private psychiatrist who provided treatment in the 1990s noted that he reviewed unspecified records provided by the Veteran and evaluated the Veteran in January 2007. The psychiatrist noted that the Veteran was receiving on-going anti-depressive medications and mental health care from a VA clinic. The psychiatrist noted that the Veteran experienced decreased energy, sense of worthlessness, anxiety, irritable mood, guilt, sleep disturbances, exaggerated startle response, ruminations over minor past failings, and loss of concentration. The psychiatrist also noted that the Veteran was exposed to "a traumatic stress in which experienced threatened to death." The psychiatrist diagnosed PTSD from previous combat experiences. The psychiatrist made no mention of depression or its causes. In a December 2007 addendum, the psychiatrist explained that the Veteran's depression overlapped and obfuscated the PTSD citing the principle of "Convenient Focus" that a pre-existing disorder is uncovered by stress rather than created by it. In a November 2007 RO hearing, the Veteran described the firefight in Vietnam when he was wounded and many fellow Marines were killed or wounded. He described his subsequent evacuation to a naval hospital. He stated that he went absent without leave from the hospital because he was not granted regular leave and that his private physician at that time told him he was not mentally fit to be on the street. He further stated that when he was apprehended six months later, he was returned to the hospital for help with emotional problems, was incarcerated, and then completed his enlistment. He stated that he first sought psychiatric care while working for the federal government in 1993 and was treated by the private psychiatrist until 2000 when he left his job and was no longer covered by an insurance program. The Veteran's spouse stated that she met the Veteran while working for the federal agency in the 1990s and was unaware of his service in Vietnam at the time of his treatment for depression. In January 2011, the Board concluded that new and material evidence had been received since the denial of a claim in 1972 and remanded the appeal for consideration of depression and PTSD. The Board noted the Veteran's testimony that he was treated for six months at a naval hospital immediately following his discharge, was told that he did not have the mental capacity to be released, and was returned to the hospital for mental health care. The Board directed that the RO request records from the naval hospital, current VA treatment records, and obtain a VA examination. Upon further review of the RO hearing transcript and the service personnel and treatment records, the Board concludes that the Veteran did not state nor does the record show any post-discharge treatment at a naval hospital. Rather, a complete summary of the naval hospital treatment dated in January 1968 showed that he underwent surgical procedures for the left index finger only. The record is silent for any psychiatric symptoms or care. The attending physician noted that the Veteran was often absent from sick call in November and December 1967 and was on unauthorized absence since mid-December. The attending physician administratively discharged the Veteran from hospital care with a determination that he was fit for duty. Personnel records showed that the Veteran returned to military control in July 1968 and was restricted to the Marine Corps Base at Camp Lejeune, North Carolina awaiting court martial. In September 1968 he was found not guilty of all charges by a special court martial and was assigned regular duty in a Marine Corps Engineering Squadron. He was on unauthorized absence for twelve days in November and December 1969 and received non-judicial punishment including ten days of correctional training. There is no indication of any hospital or outpatient mental health treatment, and no psychiatric abnormalities were reported by the Veteran or noted by an examiner on a September 1969 discharge examination. Therefore, an additional search for naval hospital records is not warranted. VA outpatient treatment records through November 2012 have been obtained and associated with the paper or electronic claims files. In May 2011, a VA psychiatrist noted a review of the claims file and the Veteran's outpatient mental health treatment since 1995. The psychiatrist noted the Veteran's attending VA psychiatrist by name for his treatment of depression but made no mention or comment on the records, letter reports, and diagnoses of the private psychiatrist. The psychiatrist noted the Veteran's combat experiences, injury, and deaths of fellow Marines. The Veteran reported symptoms of nervousness after hearing gunshots, difficulty sleeping, irritability, "ruminations," social isolation, and mood shifts. On examination, the psychiatrist noted a nervous mood, constricted affect, and recurrent distressing dreams, but no ritualistic or inappropriate behavior, memory, thought, or communications deficits. The psychiatrist diagnosed depressive disorder but not PTSD. The psychiatrist acknowledged that the Veteran experienced traumatic combat events that involved actual or threatened death with a response of intense fear. The psychiatrist also acknowledged that the Veteran displayed persistent re-experiencing of the events and persistent hyperarousal but concluded that he did not display persistent avoidance of the stimulus. Therefore, the psychiatrist concluded that the Veteran's disorder did not meet the diagnostic criteria for PTSD. Further, the psychiatrist concluded that the depressive disorder was not caused or aggravated by military service because the symptoms first manifested over twenty-six years after service and did not have a temporal relationship to service. In an October 2011 letter to the Board with a waiver of consideration by the RO, the Veteran reported that his interview with the VA psychiatrist in May 2011 was terminated by the examiner when she received a distressing telephone call. The Veteran reported that he left the medical center in his automobile with other passengers when the psychiatrist called to complete the examination by telephone. The Veteran noted that he was unable to speak frankly with other passengers present and that he expected to be scheduled for another examination. The psychiatrist made no mention of this interruption in the examination report. In view of the irregularity of the examination and because the examiner noted that the Veteran did not meet one of several criteria for a diagnosis of PTSD, the Board referred to the current VA outpatient treatment records. From July 2009 to November 2012, the Veteran received VA outpatient mental health care at a VA clinic from two attending VA psychiatrists approximately every three to six months. The attending psychiatrists diagnosed major depression, frequently citing on-going medical conditions and living arrangements as relevant causes. The Veteran has been diagnosed with prostate cancer, hepatitis C infection, hypothyroidism, liver disease, back, hand, and other medical disorders. The psychiatrists repeatedly noted that the Veteran refused to talk about his combat experiences because he felt restless when thinking about them. The psychiatrists most often diagnosed major depression, recurrent, and rule/out PTSD or PTSD by history. In March 2012, an attending psychiatrist provided a table of the Veteran's response to the traumatic experiences. Under "avoidance," the Veteran reported avoiding thoughts and feelings, place and people about the events, numbness of affect, lack of interest in activities, and a sense of a foreshortened future. In April 2012, the psychiatrist recorded the answers to 17 questions regarding the traumatic events in service some of which addressed the avoidance of stimulus criteria of DSM-IV found absent in the May 2011 examination. These included avoidance of thinking or talking about the events, avoiding activities because they were reminders of the events, feeling cut off from other people, and feeling a sense of foreshortening of the future. The Veteran answered that these feelings were moderate to extremely applicable to him. In July 2012, the psychiatrist noted that a PTSD checklist was performed and that the Veteran had high scores. The Board concludes that there has been substantial compliance with the instructions in its January 2011 remand. As noted, there is credible evidence that all records of treatment at the naval hospital have been obtained and current VA outpatient records have been associated with the paper or electronic claims file. Although there are shortcomings in the May 2006 VA examination regarding review of private records by the examiner and the contention that the examination was prematurely interrupted, the Board concludes that when combined with outpatient records, there is sufficient medical evidence to decide the claim. The Board concludes that service connection for posttraumatic stress disorder is warranted. The Veteran and his spouse are competent to report on the mental and behavioral symptoms as they are observable by lay persons. Although the Veteran was reserved in discussing the events with his private and VA examiners, he described the events in detail in an RO hearing. None of the examiners challenged the Veteran's reports of the nature of the events or his current symptoms as being exaggerated or imaginary. Therefore, the Board concludes that the Veteran's lay evidence of the events and his current symptoms are competent and credible. There is credible and probative evidence both for and against a current diagnosis of PTSD. Service records show no abnormal psychiatric or behavioral abnormalities. Contrary to the Veteran's contention that he was told he was not fit to the on the streets after his injury, the records of care at the naval hospital and after his return from absence without leave make no mention of mental health issues. The attending physician noted in January 1968 that he was fit for duty. The Veteran continued to satisfactorily perform his duties following the acquittal by a court martial. In 1972, a VA examiner found that his nervousness symptoms were an acute reaction to drug abuse which the Veteran eventually abandoned. The private psychiatrist who provided treatment from 1994 to 2000 exclusively diagnosed depression and commented that it was related to stress at work. The Veteran was granted SSA disability benefits and there was no mention of any events in service or related symptoms. Following the Veteran's claim for service connection for PTSD in 2006, a VA examiner diagnosed depression with no relationship to traumatic events in combat. Following the initial denial of service connection for PTSD by the RO in January 2007, the Veteran's private psychiatrist reported that the Veteran did have PTSD related to the events in service and offered the "convenient focus" principle to explain why he did not diagnose the disorder at an earlier date. Although the Board requested that a VA examiner review the record prior to an additional examination, the VA psychiatrist did not acknowledge the private diagnosis or comment on the diagnostic theory. In a possibly incomplete examination, the VA psychiatrist declined to diagnose PTSD because the avoidance of stimulus criteria was not met during the interview. The VA attending psychiatrists continued to consider PTSD as a possible diagnosis or by history and endorsed the avoidance symptoms in March and April 2012. In this case, the Board places some probative weight on the diagnosis and opinion of the private psychiatrist although his failure to explore PTSD in the 1990s, reversal of diagnosis concurrent with adjudicative action, and failure to explain the diagnostic theory limits its value. The Board places some probative weight on the diagnosis and opinion of the VA examiner in May 2006 but it is also diminished by a failure to comment on the private records and the possibility that the examination was interrupted before all relevant questions and responses were recorded. The Board concludes that the dispositive evidence in this case is the record of outpatient treatment in 2012 in which the attending VA psychiatrist who had not previously been involved in the Veteran's care, noted many of the avoidance of stimulus symptoms without challenge. Considering the private supportive but cryptic opinion, the VA examiner who found only one criterion not met, and the outpatient records showing the presence of symptoms meeting the criteria, the Board concludes that the weight of credible and probative evidence is that the Veteran does have PTSD related to combat events. As there is a relative equal balance of credible and probative evidence both for and against the claim, and resolving all doubt in favor of the Veteran, the "benefit of the doubt" rule is not for application, and the Board grants service connection for PTSD. See 38 U.S.C.A. § 5107(b); Gilbert v. Lewinski, 1 Vet. App. 49 (1990). The Board further concludes that separate service connection for major depression is not warranted. The private psychiatrist found that PTSD and depression were co- morbid disorders. This is consistent with his diagnosis in the 1990s of depression entirely related to civilian work stress. The Veteran receives SSA disability benefits for the same reasons. Moreover, VA outpatient clinicians continue to associate the depression primarily with serious medical conditions and family matters. The VA psychiatrist in May 2011 also evaluated depression separately. The Board places less probative weight on the conclusion that depression was not associated with events in service solely because of temporal separation of symptoms. The weight of lay and medical evidence is that the symptoms of depression did not manifest until the 1990s. However, the conclusion is supported by the private psychiatrist's clinical records and opinions recorded in the 1990s that associated the depression with workplace and family stress. Current VA outpatient clinicians also associate the depression with several serious physical disorders. The Board will not speculate on the relative contributions of PTSD and depression to the Veteran's current level of disability as this is a matter requiring medical expertise. The weight of the credible medical evidence is that the Veteran's major depression manifested many years after service, was not caused or aggravated by any aspect of service, and was associated with post-service civilian work and family stress. ORDER Service connection for PTSD is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs