Citation Nr: 1317816 Decision Date: 05/31/13 Archive Date: 06/06/13 DOCKET NO. 05-04 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney WITNESSES AT HEARING ON APPEAL Appellant, spouse, and W.M. ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran had active military service from February 1969 to September 1971. He had service in Vietnam from July 1970 to September 1971. The appellant subsequently served in the West Virginia Army National Guard, to include periods of active duty for training (ACDUTRA). Service connection for PTSD was initially denied by Department of Veterans Affairs (VA) rating decision in August 1987. The Veteran did not file a timely appeal within one year of the decision and the determination became final. See 38 C.F.R. § 20.1103 (2012). The VA Board of Veterans' Appeals (Board) declined to reopen the claim by decision dated in June 1990. Upon the Veteran's attempts to revisit the issue of service connection for PTSD, the VA Regional Office (RO) in Huntington, West Virginia declined to reopen the claim in June 1999 and May 2003. The Veteran perfected a timely appeal following the latter decision. The Veteran was afforded a hearing in June 2007 before the undersigned Veterans Law Judge sitting at Washington, DC. The transcript is of record. The Board reopened the claim of entitlement to service connection for PTSD by decision dated in October 2007. The case was remanded for additional development at that time and thereafter in February 2010. By decision dated in May 2011, the Board denied service connection for PTSD. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a June 2012 Order, the Court granted the VA General Counsel and Veteran's counsel Joint Motion for Remand, vacated the case and remanded it for actions consistent with the Joint Motion. The Board observes that following the most recent supplemental statement of the case in February 2011, additional evidence was received in support of the claim that includes an April 2013 psychiatric evaluation from M. L. Cesta, MD, FACP. This evidence has not previously been considered in the adjudication of this case. However, the Veteran's representative waived consideration of this evidence by the agency of original jurisdiction in correspondence dated in April 2013. As such, the Board may consider this evidence in the first instance. See 38 C.F.R. §20.1304(c) (2012). FINDINGS OF FACT 1. The Veteran has a diagnosis of PTSD related to traumatic events experienced in Vietnam. 2. The Veteran's lay statements and testimony of coming under attack, fear of attack, and witnessing the deaths of fellow soldiers are credible, consistent with the places, dates, and circumstances of service in Vietnam, and are sufficient to verify the occurrence of the reported events. 3. Recently received evidence, when reviewed in conjunction with the other evidence on file suggests that it is more likely than not that the Veteran has PTSD as a result of service. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this instance, the claim of entitlement to service connection for PTSD is granted. The Court of Appeals for Veterans Claims (Court) has held that the VCAA is not applicable where further assistance would not aid the appellant in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362 (2001); see also 38 U.S.C.A. § 5103A (a)(2). In view of the Board's favorable decision and full grant of the benefit sought on appeal, further assistance is unnecessary to aid the appellant in substantiating this aspect of the appeal. Pertinent Law and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2012); 38 C.F.R. § 3.303 (2012). Service connection may 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 or aggravated by service. 38 C.F.R. §§ 3.303, 3.306 (2012). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2012); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Factual Background and Legal Analysis- This appeal is subject to changes in applicable regulations pertaining to PTSD claims that were appealed to the Board but not decided as of July 13, 2010. Specifically, 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). "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. Id. 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). 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). Moreover, 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.A. § 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"). Review of the record reveals that there have been multiple diagnoses recorded over the years. Recent VA medical records were to the effect that there was no confirmed diagnosis of PTSD. It was noted, in that examination, and is noted by the Board, that there are VA diagnoses of PTSD in earlier records on file, some of which were made by psychologists or psychiatrists. The more recent examiner concluded that it was not possible to say how those findings were made, but that based on current findings to the most recent examiner, PTSD was not found. Added to the record, since the Joint Motion, is a comprehensive private evaluation, resulting in the conclusion that the most appropriate diagnosis is PTSD. The examiner demonstrated a comprehensive review of the pertinent medical evidence and had an extensive interview with the Veteran. Findings detailed in this report appear highly probative, and are supported by review of the evidence on file. Coupled with VA diagnoses of PTSD in the past, this information suggests that it is more likely than not that the Veteran has PTSD related to service. In this instance, the Board concludes that service connection for PTSD is warranted under the new regulations permitting the Veteran's own statements to establish the occurrence of a stressor. Although the evidence reflects differential diagnoses, including major depressive disorder, there has been credible medical evidence over the years showing diagnoses of PTSD related to events in Vietnam as determined by VA clinicians. The Veteran receives ongoing VA treatment for symptoms associated with a psychiatric disorder that has variously been diagnosed as PTSD. Documents in the record tend to support his statements of engaging in combat, and serving in a combat area in duties, places, and circumstances consistent with reports of traumatic events that included fear of personal injury, being under attack, and witnessing of the deaths of fellow soldiers. The Board concludes that the Veteran's lay testimony, in conjunction with his personnel file, morning reports, post service history and the clinical evidence are consistent, credible, and sufficient to verify the occurrence of the traumatic events. Therefore, the Board resolves the benefit of the doubt in his favor by finding that service connection for PTSD is warranted. In reaching this conclusion, the Board finds that the evidence is at least in equipoise and the benefit of the doubt doctrine has been appropriately applied in granting service connection for PTSD. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs