Citation Nr: 1311841 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-44 044A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Sherrard, Counsel INTRODUCTION The Veteran, who is the Appellant in this case, had active service from January 2005 to April 2005, and from August 2007 to April 2008. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a January 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a February 2013 videoconference hearing before the undersigned Veterans Law Judge at the RO. A transcript of the hearing is associated with the claims folder. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran did not engage in combat with the enemy during service. 2. The Veteran has a current diagnosis of PTSD. 3. The Veteran's claimed stressors involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others due to attack by the enemy, and are consistent with the places, types, and circumstances of his service in Afghanistan. 4. A VA psychiatrist confirmed that the claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 101, 1101, 1110, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Given the full grant of benefits sought on appeal, no conceivable prejudice to the Veteran could result from this decision; therefore, no discussion of compliance with the VCAA is necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). The claimed condition at issue (PTSD) is not a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.309(b) (requiring continuity of a condition after service if chronicity is not found in service) does not apply to the condition. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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. 38 C.F.R. § 3.304(f). The applicable regulation requires that the in-service stressor or traumatic event involve actual or threatened death, serious injury, or a threat to the physical integrity of self or others and the person's response involve intense fear, helplessness, or horror. See DSM-IV § 309.81 (4th ed. 1994). In adjudicating a claim for service connection for PTSD, the evidence necessary to establish the incurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether or not the Veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, a veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory, that is, not contradicted by service records, and "consistent with the circumstances, conditions, or hardships of such service." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d),(f); Doran v. Brown, 6 Vet. App. 283, 289 (1994). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that a veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If it is determined that a veteran did not engage in combat with the enemy, or the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies a veteran's testimony or statements as to the occurrence of the claimed stressors. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). With regard to stressor verification, the VA regulation at 38 C.F.R. 3.304(f) has recently been amended by the Secretary of Veterans Affairs, by the addition a new paragraph which liberalizes, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. The paragraph reads 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 posttraumatic stress disorder 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. 38 C.F.R. § 3.304(f)(3) (2012), as added in 75 Fed. Reg. 39,843-852 (July 13, 2010). The amendment to the regulation is effective, in pertinent part, for all claims pending at the Board on July 13, 2010. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and "may provide sufficient support for a claim of service connection." See Layno, 6 Vet. App. at 469; 38 C.F.R. § 3.159(a)(2). The Court has emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of a veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In this case, the Veteran alleges he has PTSD due to several stressors that occurred when he was stationed in Afghanistan during active service. Specifically, he avers that he witnessed an Afghani civilian get shot and killed by another civilian, an Afghani civilian get run over, and experienced incoming rocket-propelled grenade (RPG) attacks every two to three days for the entire time he was stationed in Afghanistan. First, the Board finds that the evidence does not show, nor does the Veteran allege, that he engaged in direct combat with the enemy during active service. His DD Form 214 for his second period of active service (the period during which he was stationed in Afghanistan) lists his military occupational specialty (MOS) as a cannon crewmember, and states that he had service in Afghanistan from September 2007 to April 2008. He received the National Defense Service Medal, the Afghanistan Campaign Medal, and the Global War on Terrorism Service Medal. These awards indicate that he was in a theater of combat operations, but not necessarily that he was directly engaged in combat. In addition, there is no other indication that the Veteran engaged in combat, nor does he allege direct combat with the enemy. In fact, at an April 2008 Post-Deployment Health Assessment, the Veteran answered "no" when asked whether he engaged in direct combat where he discharged his weapon. For this reason, 38 U.S.C.A. § 1154(b), discussed above, is not applicable in this case. With regard to the first element necessary for a grant of service connection (medical evidence of PTSD), the Board finds that the evidence is at least in equipoise as to whether there is a diagnosis of PTSD of record in accordance with DSM-IV criteria. The first requirement for any service connection claim is competent evidence of existence of a current disability. Brammer, 3 Vet. App. at 225. Initially, the Board notes that at an April 2008 Post-Deployment Health Assessment, conducted just prior to separation from service, the Veteran reported that he was interested in seeking mental health treatment, and complained of symptoms including little interest or pleasure in doing anything, occasionally feeling down, depressed, or hopeless, experiencing nightmares in the past month about an experience that was frightening, horrible, or upsetting, and trying to avoid thinking about the experience or avoiding situations that reminded him of it. Several days after service separation, an April 2008 VA treatment note indicates that there were no specific issues identified suggesting a need for mental health treatment. However, the Veteran reported dreaming about mountains and falling off of a cliff about two times per week, which he also dreamt about while in Afghanistan. The Veteran was afforded a VA examination with a VA psychologist, Dr. P., in August 2008. The Veteran reiterated the stressors outlined above, and stated that he felt his life was in danger when in Afghanistan. He reported symptoms of PTSD including difficulty sleeping, nightmares, night sweats, flashbacks, intrusive thoughts, hypervigilance, difficulty being in crowds, difficulty with loud noises, anger, and irritability. The VA examiner assessed PTSD on Axis I of the DSM-IV diagnosis chart after determining that all the DSM-IV criteria for a PTSD diagnosis had been met. In January 2009, a VA physician assistant conducted a mental health evaluation and also made an Axis I diagnosis of PTSD based on the Veteran's reported symptoms. An April 2009 VA treatment note indicates the Veteran reported having a difficult month because a friend of his committed suicide three to four weeks earlier. He reported trouble sleeping and an increase in nightmares. The VA psychiatrist who treated him on that occasion and ultimately became his treating psychiatrist assessed PTSD and bereavement on Axis I. In September 2010, the Veteran was afforded another VA examination with a different VA clinician, J.T., who deferred his diagnoses, stating that, during the examination, the Veteran had difficulty giving him specific information about several of his symptoms, and that, at times, he was quite vague. J.T. also noted there were mild contradictions in terms of what woke him up at night, and that he was reporting a few odd symptoms as well. Therefore, J.T. stated he could not make a reliable or valid assessment, and that additional psychological testing was necessary to evaluate symptom validity. In October 2010, the first VA examiner, Dr. P., conducted the psychological testing requested by J.T., including a Miller-Forensic Assessment of Symptoms Test and a Personalized Assessment Inventory. These tests both suggested malingering of mental health symptoms. Based on these tests, Dr. P. stated that no diagnostic clarification could be obtained from additional testing. However, she noted that the presence of malingering did not rule out an actual psychiatric disorder, but made it difficult to determine the nature and extent of any potential disorder present. The results of these tests were forwarded back to the September 2010 VA examiner, J.T., who concluded that he could not render a diagnostic impression or functional impairment rating without resorting to mere speculation, due to the Veteran's malingering. Both Dr. P. and J.T. reiterated the opinion that they could not provide a diagnosis of PTSD without speculation due to the Veteran's malingering in additional April 2012 and June 2012 reports, respectively. Finally, the Veteran submitted a December 2012 "Review PTSD Disability Benefits Questionnaire" completed by his VA treating psychiatrist of several years. The VA psychiatrist assessed chronic PTSD on Axis I, noting that the Veteran had been treating at a VA clinic for PTSD since 2008 and was taking medication for it. Despite the 2010 psychological testing that indicated malingering of symptoms, the Board notes that the Veteran was diagnosed with PTSD by a VA physician (Dr. P.) in 2008, prior to such testing, and that his treating VA psychiatrist has also assessed an Axis I diagnosis of PTSD. As the evidence is at least in equipoise as to whether the Veteran meets the criteria for a PTSD diagnosis, the Board will apply the benefit of the doubt in favor of the Veteran in finding that he does have a PTSD diagnosis in accordance with the DSM-IV criteria. The second criterion for service connection for PTSD is credible supporting evidence that the claimed in-service stressor occurred. The Board finds that the evidence is at least in equipoise as to whether the Veteran's claimed stressors occurred. First, the claimed stressors involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others due to attack by the enemy. The Board notes that, at his April 2008 Post-Deployment Health Assessment, the Veteran reported seeing people wounded, killed, or dead in Afghanistan, and that there were times when he felt he was in great danger of being killed. His VA treating psychiatrist also concluded in her December 2012 report that the Veteran experienced, witnessed, or was confronted with an event that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others, and that the Veteran's response involved intense fear, helplessness, or horror. Second, the claimed in-service stressors are consistent with the places, types, and circumstances of his service in Afghanistan. Thus, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressors under the recent amendment to the governing regulation, i.e., the new 38 C.F.R. § 3.304(f)(3), supra. Furthermore, the Veteran is credible, as his various accounts of his stressors have been consistent throughout the course of this appeal. In addition, the Veteran submitted a February 2009 "buddy statement" from R.S., who stated that he served on convoys with the Veteran in Afghanistan and lived on camp with the Veteran, and that there were RPG attacks at the camp every two or three days. Resolving reasonable doubt in favor of the Veteran, the Board finds that the claimed stressors occurred. Finally, the third criterion, a link, established by medical evidence, between current symptoms and an in-service stressor, is met in this case. Under the new 38 C.F.R. § 3.304(f), a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of posttraumatic stress disorder and that the veteran's symptoms are related to the claimed stressor. Here, as discussed above, the Veteran was diagnosed with PTSD by a VA psychologist at an August 2008 VA examination, although the VA examiner stated that she could not state whether the PTSD was related to the claimed in-service stressors without documentation of those events having occurred. However, in the December 2012 report completed by the Veteran's treating VA psychiatrist, the psychiatrist specifically found that the DSM-IV criteria had been met based on the Veteran's military stressors. Thus, the evidence demonstrates that a VA psychiatrist determined that the claimed stressors are adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the stressors. Moreover, other than the April 2009 diagnosis of bereavement after the suicide of a friend, there are no other documented post-service traumatic events that would serve as a basis for a diagnosis of PTSD. The Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed PTSD is related to active service. For these reasons, and with resolution of reasonable doubt in favor of the Veteran, the Board finds that the criteria for service connection for PTSD are met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs