Citation Nr: 1317022 Decision Date: 05/23/13 Archive Date: 05/31/13 DOCKET NO. 09-02 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: National Association for Black Veterans, Inc. ATTORNEY FOR THE BOARD Timothy D. Rudy, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to March 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, which denied service connection for PTSD. The Board notes that the Veteran requested a Board hearing in his VA Form 9, Substantive Appeal, received in January 2009. A video conference Board hearing was scheduled in January 2012, but the Veteran failed to appear for the scheduled hearing. As the record contains no explanation for the Veteran's failure to appear or his desire for a hearing to be rescheduled, his request for a hearing is deemed withdrawn. See 38 C.F.R. § 20.704 (2012). Subsequently, the Board remanded this matter for additional development in a February 2012 decision. The Veteran initially filed a claim for service connection for PTSD, but the United States Court of Appeals for Veterans Claims recently held that, when a claimant identifies a mental disorder without more, it cannot be considered a claim limited only to that diagnosis, but rather must be considered a claim for any mental disability that may reasonably be encompassed by several factors including the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that VA obtains in support of the claim. The Court found that such an appellant did not file a claim to receive benefits only for a particular diagnosis, but for the affliction (symptoms) his mental condition, whatever it is, causes him. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Therefore, in its February 2012 remand, the Board recharacterized the claim on appeal as it appears on the title page. FINDINGS OF FACT 1. The evidence of record demonstrates that the Veteran's currently diagnosed PTSD is causally/etiologically related to service. 2. The Veteran's depression is as likely as not causally related to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 4.125 (2012). 2. The criteria for service connection for depression as secondary to service-connected PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The provisions of the Veterans Claims Assistance Act of 2000 (VCAA) are codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) and interpreted by the Court. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 20 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006)). Given the determinations reached in this decision, the Board is satisfied that adequate development has taken place and that there is a sound evidentiary basis at present for resolution of this service connection claim for an acquired psychiatric disorder without detriment to the due process rights of the Veteran. Service Connection - Laws and Regulations Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prevail on the issue of service connection on the merits, there must be (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 disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). VA regulations provide that where a veteran served 90 days or more of continuous, active military service during a period of war or after January 1, 1947, and certain chronic diseases, including a psychosis, become manifest to a degree of 10 percent within one year from date of termination of service, such disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. Service connection for PTSD generally requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The law provides that secondary service connection shall be awarded when a disability is "proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). See Libertine v. Brown, 9 Vet. App. 521, 522 (1996); Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (en banc). Establishing service connection on a secondary basis therefore requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service connected disability. 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). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. PTSD The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD. In his written submissions and in the medical evidence, the Veteran contends that he experienced two in-service stressors that contributed to his PTSD. For example, according to a July 2000 VA emergency services psychiatric record the Veteran served in Germany as a teenager and was trained in anti-terrorism. He said that he could not provide details, but that he saw things that had deeply impacted him, including seeing a friend get his hands blown off when he tried to steal an East German sign that was booby-trapped. During his VA mental examination, the Veteran also reported that he saw his platoon sergeant killed in a motor vehicle accident while in Germany. The Veteran's DD Form 214 does not indicate that he received medals and decorations showing actual participation in combat. His service personnel records reveal that the Veteran did not serve in Vietnam or in Southeast Asia, but was stationed in West Germany from August 1975 to August 1978. These records also show that he served there as a grenadier and rifleman attached to at least three different units. Service treatment records do not show any complaints of, or treatment for, any psychiatric disorder while in service. The Veteran's March 1975 induction examination and March 1979 discharge examination showed no psychiatric abnormalities. In addition, on the contemporaneous reports of medical history the Veteran completed on both occasions he checked the "no" boxes when questioned as to whether he ever had or now had depression or worry, nervous trouble of any sort, or frequent trouble sleeping. Post service, there is no record of psychiatric complaints or treatment until the Veteran was seen at the Tacoma, Washington Vet Center in February 1999. He said that he needed to "talk things out" and also expressed frustration about recent downturns in his career. It was noted that the Veteran was self-employed and that he had served as an infantryman providing security with the 11th Cavalry in Germany in the late 1970s. The assessment was rule out an adjustment disorder. According to other information at the time, the Veteran was not seeing any physician for treatment. According to a July 2000 VA psychiatric clinic emergency services record the Veteran was primarily concerned with his increased irritability and his increased resentment of authority. It was noted that he was attempting to build his own business in the hazardous materials field, had not been able to buy a home for his family, and seriously injured another person during a street fight. While alert and oriented and organized, the nurse practitioner noted that the Veteran kept returning to the theme of how capable he was and how much classified information he had. She noted a grandiose quality. The only PTSD symptoms endorsed were irritability and social isolation. The Veteran did express a feeling that he was scarred from his service experience. He declined medication and requested to start at the PTSD clinic. Subsequent records that summer indicated that he failed to show for orientation. According to an October 2007 VA mental health clinic record the Veteran expressed interest in pursuing treatment with a PTSD outpatient program. It was noted that the Veteran could not watch the news because it evoked anger. He could not be around a lot of people. He believed biofeedback and eye movement were ways of brainwashing that had been done to him. He reported no prior psychiatric treatment. He slept four hours a night and had a small circle of family that he trusted. The assessment was PTSD. A referral to the VA mental health clinic was noted, but there are no further VA treatment records associated with the claims file or on the Veteran's eFolder website. The Veteran underwent a VA mental examination in January 2013. He was diagnosed with PTSD due to traumas experienced while the Veteran was deployed in Germany, including the death of his platoon sergeant in a motor vehicle accident the Veteran witnessed and a service comrade losing his hands when a booby trapped East German sign exploded. The VA examiner specifically found 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 himself or others. Further, the Veteran's response to these events involved intense fear, helplessness or horror. He measured 30 out of 51 on a PTSD test thus meeting the criteria for re-experiencing past traumas in Germany, avoiding those past traumas, and for increased arousal associated with those past traumas. The examiner stated that the Veteran's test performance was considered valid and indicated moderately severe PTSD symptoms. According to the VA examination report, the Veteran was in a border reaction unit when stationed in West Germany and was exposed to mine fields and the discharge of automatic weapons from towers. The VA examiner stated that it was his opinion that the booby trap explosion in his presence and the death of his platoon sergeant in his presence impacted the Veteran during his period of active duty and are the basis of the Veteran's fear of hostile military or terrorist activity. Diagnosis was moderately severe PTSD. Having independently reviewed the record, the Board is satisfied that the claims file does in fact contain a PTSD diagnosis, and the Board is of the opinion that the evidence supports the grant of the Veteran's claim for service connection for PTSD. As noted above, service connection for PTSD generally requires medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that it requested further development of this claim on remand in February 2012, including that the Veteran should be scheduled for a VA mental examination and medical opinion and that the U.S. Army and Joint Services Records Research Center (JSRRC) should be contacted to provide unit histories of the Veteran's units. The Board also notes that the Veteran's claimed in-service stressors were never verified and that the JSRRC reported in August 2012 that it was unable to locate unit records or verify the incident when a fellow service member had his hands blown off when he tried to remove an East German sign that was booby trapped. The Board also notes the record contains formal findings by the RO of a lack of information with which to corroborate the Veteran's stressors dated in June 2012, October 2012, and March 2013. The Board further notes that only a year and a half after the Veteran filed his Substantive Appeal in this case, VA regulations on corroboration of in-service stressors were amended in July 2010, see 38 C.F.R. § 3.304(f)(3) (relaxing confirmation of stressors when they are related to a veteran's fear of hostile military or terrorist activity). Under the former 38 C.F.R. § 3.304(f), the credible supporting evidence necessary to establish the occurrence of a claimed in-service stressor varied depending upon whether or not the veteran engaged in "combat with the enemy," which is not at issue in this appeal. If VA determined either that the veteran did not engage in combat with the enemy or that he did engage in combat with the enemy but his claimed in-service stressor was not combat related, his lay testimony alone was not sufficient to establish that the claimed in-service stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). The stressor instead had to be corroborated by evidence from another source. See Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); Cohen v. Brown, 10 Vet. App. at 142; Moreau v. Brown, 9 Vet. App. 389 (1996). This regulatory framework still applies under the new 38 C.F.R. § 3.304(f) unless the veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." 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 and responded with a psychological or psychophysiological state of fear, helplessness, or horror. The Board believes that evidence in the record corroborates that the Veteran underwent traumatic experiences during his military service. The January 2013 VA examiner indicated that the Veteran's PTSD symptoms were related to memories of disturbing military experiences. In this case, the Board believes that the VA examiner corroborated that the Veteran likely experienced fear of hostile military or terrorist activity during his tour of duty in Germany. As noted above, his DD Form 214 illustrates that the Veteran was not the recipient of any combat-related awards or decorations, but he was stationed in West Germany. At the time of the Veteran's deployment in West Germany East Germany was a member of the Warsaw Pact and a satellite country of the Soviet Union and there was consequently tension between East Germany and the United States. The January 2013 VA examiner indicated that the Veteran's PTSD symptoms were related to his fear of hostile military or terrorist activity based on the two alleged inservice stressors. According to the VA examination report, the Veteran was in a border reaction unit when stationed in West Germany and was exposed to mine fields and the discharge of automatic weapons from towers. It was the opinion of the VA examiner that the booby trap explosion in the Veteran's presence impacted the Veteran during his period of active duty and underlies the Veteran's fear of hostile military or terrorist activity. The Board notes that there is no direct evidence of record that the Veteran was not in fear of hostile or East German activities during his period of active service. As there is no evidence to the contrary, the Board will assume that the Veteran was in a hostile environment in the 1970s while serving along the West German-East German border. Further, he has been diagnosed as responding in fear to the in-service trauma, and therefore, the Board will further find that the Veteran has met the relaxed standard of revised § 3.304(f) relating to "fear of hostile military or terrorist activity" for at least one of his claimed in-service stressors. The Board also notes that if a veteran's claimed in-service stressor is related to fear of hostile military or terrorist activity, the new 38 C.F.R. § 3.304(f)(3) provides that the Veteran's lay testimony alone establishes that the stressor occurred only when three qualifications are met. First, the claimed in-service stressor must be consistent with the places, types, and circumstances of his service. Second, there must be no clear and convincing evidence to the contrary. Finally, a VA or VA-contracted psychiatrist or psychologist must confirm both that the claimed in-service stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed in-service stressor. As noted above, the Board believes that all of these conditions have been met in this appeal. In this case, there is no dispute that the claimed in-service stressor of a fellow service member losing his hands as a result of a booby trapped East German sign is consistent with the places, types, and circumstances of the Veteran's service along the West German-East German border and there is no clear and convincing evidence to the contrary. In addition, the January 2013 VA examiner, a VA psychologist, confirmed that the claimed in-service stressors, including the claimed booby trapped East German sign, were adequate to support a diagnosis of PTSD and that the Veteran's symptoms were related to these claimed in-service stressors. Therefore, the Veteran has a PTSD diagnosis based on at least one corroborated in-service stressor. Moreover, the Board also finds that the Veteran's fear of an impending personal battery from booby trapped items along the border with East Germany is somewhat analogous to those PTSD claims based on inservice personal assaults. See 38 C.F.R. § 3.304(f)(5). In such cases, VA regulations permit evidence from sources other than a veteran's service records to corroborate his or her account of the stressor incident, such as evidence of behavior changes. In personal assault PTSD cases, VA may submit any evidence it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. Id. Simply put, the opinion of the January 2013 VA examiner regarding the Veteran's fear of hostile military or terrorist activity based on his fear of suffering personal violence from explosive devices along the border with East Germany has in effect established that the Veteran's claimed in-service incident (in-service stressor based on witnessing a service buddy lose his hands when he tried to remove an East German booby trapped sign) actually occurred. Therefore, based on all of the foregoing, the Board finds that the Veteran has provided sufficient evidence of all the elements required for a grant of service connection for PTSD, and that service connection for PTSD is warranted. Depression As noted in the Introduction, while the Veteran did not separately seek service connection for any other psychiatric disorder besides PTSD, the Court in Clemons requires VA to consider a claim for any mental disability that may reasonably be encompassed by the record. In this case, the January 2013 VA examiner also diagnosed the Veteran with depression. The report of the VA mental examination noted that the Veteran scored a 14 out of 27 on a depression survey, which the examiner indicated suggested moderate symptoms of depression, besides scoring 30 out of 51 on a PTSD Symptom Scale Interview, which the examiner indicated suggested moderately severe symptoms of PTSD. In March 2013, the January 2013 VA examiner provided an addendum opinion at the request of the RO for purposes of clarification. He stated that the Veteran's depression was secondary to his PTSD and chronic back pain. Based on the evidence of record the Board finds that secondary service connection for depression is warranted in this case. The record contains evidence both that depression has been diagnosed by the January 2013 VA examiner, a VA psychologist, and that this depressive disorder is secondary to the Veteran's PTSD. As noted above, the Board in this decision herein has granted the Veteran service connection for PTSD. The March 2013 addendum specifically noted that the Veteran's depression was, at least in part, secondary to his PTSD which the Board believes is equivalent to a medical finding that his current depression was either caused by or aggravated by his service connected PTSD. After carefully reviewing all the evidence on file, the Board finds no adequate basis to reject the competent medical evidence of record from the January 2013 VA examiner that is favorable to the Veteran, based on either a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). Accordingly, the claim for secondary service connection for depression is also granted. ORDER Service connection for PTSD is granted. Service connection for depression as secondary to service-connected PTSD is granted. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs