Citation Nr: 1313610	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  09-16 664	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

P. Childers, Counsel






INTRODUCTION

The Veteran served on active duty from November 1967 to November 1969, including combat service in Vietnam, and his decorations include the Combat Infantryman Badge. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2007 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  


FINDING OF FACT

The Veteran's PTSD, dysthymic disorder and anxiety disorder not otherwise specified had its onset in-service.


CONCLUSION OF LAW

PTSD, dysthymic disorder and anxiety disorder not otherwise specified were incurred in service.  38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

In this decision the Board is granting the claim of service connection for PTSD, dysthymic disorder and anxiety disorder not otherwise specified.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran seeks service connection for psychiatric disability, which he relates to his experiences in Vietnam from 1968 to 1969.  He reports that his duties included security and patrol and that he was a machine gunner and received all forms of enemy fire.  He reports that he saw death and destruction during his combat service in Vietnam on many occasions, and recalls a particular incident when the soldier standing next to him was shot in the chest and fell over dead before he hit the ground.  He adds that he killed the person that had shot his comrade.  He complains of nightmares over this and other traumatic war experiences.  

The Veteran's DD Form 214 confirms he served in combat in Vietnam.

On VA psychiatric assessment done in March 2007 by a VA social worker the Veteran described certain particularly heinous battlefield events, and complained of intrusive thoughts and nightmares.  He admitted to multiple failed marriages and significant problems in his social life.  The social worker remarked that the Veteran's traumatic war experiences had given him feelings of extreme fear and horror.  Axis I diagnosis was "r/o PTSD, chronic."  A few days later the diagnosis of PTSD was confirmed by a VA psychiatrist.

In May 2007 the Veteran underwent a psychiatric evaluation by another VA psychiatrist, who also returned a diagnosis of PTSD, related to service.

On VA PTSD examination in October 2007 the axis I diagnosis was dysthymic disorder because, according to the examiner (a psychologist), the Veteran did not meet any of the criteria for a diagnosis of PTSD.  

In a psychiatry note dated in November 2007, the May 2007 psychiatrist took issue with the conclusions made by the October, 2007; he reiterated his position that the Veteran "has service-connected posttraumatic stress disorder."

On VA PTSD examination in May 2011, which was done by another VA psychologist, the examiner stated that the Veteran did not meet full criteria for PTSD during that assessment because his report of avoidance and arousal symptoms was not consistent, but she then went on to state that the Veteran "likely meets criteria for avoidance criteria, though minimally."  She added that the Veteran's most pronounced avoidance symptoms were avoiding thoughts/feelings related to trauma and avoiding activities that reminded him of trauma.  She then returned a diagnosis of anxiety disorder, not otherwise specified, because, according to her, the Veteran did meet some criteria for PTSD.  She also stated that the Veteran met the criteria for a diagnosis of dysthymic disorder, which she said was related to the Veteran's Vietnam combat experiences.  

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 C.F.R. § 3.303(a).  Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establishes that the disorder 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 diagnosis that conforms to 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 Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease in the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, if said evidence is consistent with the circumstances, conditions, or hardships of the veteran's service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  To establish service connection, however, there still must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

Military records confirm that this is a Vietnam combat soldier, so the provisions of 38 U.S.C.A. § 1154(b) are applicable in this case.  And, for the record, the Board finds the Veteran's report that he was and continues to be disturbed by the death and destruction that he witnessed and exacted during his year in Vietnam to be credible.  38 C.F.R. § 3.304(f).  See also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself).  Moreover, the Board finds that the evidence satisfies the in-service stressor "fear of hostile military or terrorist activity" requirement of 38 C.F.R. § 3.304(f)(3).  

In addition, the Veteran has a confirmed diagnosis, made on clinical examination by two separate VA psychiatrists, of PTSD secondary to Vietnam combat service.  Although two VA examining psychologists contend that the Veteran's symptoms do not fully support a finding of Criterion C avoidance behaviors for a diagnosis of PTSD, the Board accords these opinions less weight than it does those provided by the VA psychiatrists since, as patiently explained by one of the psychiatrists, the Veteran symptoms do indeed meet Criterion C behaviors.  Further, neither of the psychologists discussed the possible impact that the Veteran's psychotropic medication may have had on the Veteran's appearance and functioning during the examinations which, as the Veteran pointed out in correspondence dated in October 2011, is atypical of his usual presentation.  The Board thus finds that the evidence favors a diagnosis of PTSD, as made by two VA psychiatrists.  As such, because there is a confirmed diagnosis by two VA psychiatrists; credible evidence of an in-service stressor and fear of hostile military activity; and credible evidence of a link between current symptoms and the Veteran's combat service/in-service stressor(s); service connection for PTSD is warranted.  38 C.F.R. § 3.304(f).

The evidence also substantiates a finding of service connection for dysthymic disorder and anxiety disorder not otherwise specified.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009 (providing that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence).  According to the two VA psychologists, the Veteran has dysthymic disorder and anxiety disorder not otherwise specified related to service.  There is no contrary lay or medical evidence.  Thus, service connection for dysthymic disorder and anxiety disorder not otherwise specified is also warranted.  


ORDER

Service connection for PTSD, dysthymic disorder and anxiety disorder not otherwise specified is granted.



____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs