Citation Nr: 1319070 Decision Date: 06/12/13 Archive Date: 06/21/13 DOCKET NO. 09-43 661 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to June 1995, plus he had 6 months 6 days of prior active service. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision that denied service connection for PTSD and hepatitis B. The Veteran timely appealed both denials. Subsequently, during the course of the appeal, service connection was granted for hepatitis B. Therefore, that issue is no longer on appeal. In December 2009, the Veteran withdrew his prior request for a Board hearing, in writing, and opted instead for a hearing before a local RO Decision Review Officer. That hearing was conducted in May 2010. In addition to reviewing the Veteran's paper claims file, the Board has surveyed the contents of his Virtual VA file. FINDING OF FACT Resolving all doubt in the Veteran's favor, PTSD and a major depressive disorder are related to the in-service stressors described by the Veteran. CONCLUSION OF LAW PTSD and a major depressive disorder were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist 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, 3.326(a) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) is not applicable where further assistance would not aid the Veteran in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. II. Analysis The Veteran contends that his current psychiatric disability, to include PTSD, is related to his in-service stressors that occurred during his active service while deployed to Incirlik Air Base, Turkey. He testified that he participated in Operation Provide Comfort, and that he led a unit responsible for providing around-the-clock protection of U.S. aircraft and personnel deployed in Turkey. Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C.A. §§ 1110, 1131. Generally, service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD requires a current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (1994) (DSM-IV)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible evidence that the claimed in-service stressor actually occurred. See 38 C.F.R. § 3.304(f). VA has amended its regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing in-service stressors. 75 Fed. Reg. 39843 (July 13, 2010). 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. 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) (effective July 13, 2010). The primary effect of the amendment of 38 C.F.R. § 3.304(f) is the elimination of the requirement for corroborating evidence of a claimed in-service stressor if it is related to the Veteran's fear of hostile military or terrorist activity. In place of corroborating any reported stressor, a medical opinion must instead be obtained from a VA, or a VA contracted, psychiatrist or psychologist. The Veteran's Form DD 214, Certificate of Release or Discharge from Active Duty, indicates no foreign service. However, it also confirms receipt of the Southwest Asia Service Medal, and indicates that the Veteran "[s]erved 2 AUG 90 to 16 JUN 95 in support of Operation Desert Shield/Storm. Served in Desert Shield/Storm Areas of Responsibility." Notably, the Veteran's military occupational specialty confirms increasing levels of responsibility for security of personnel and equipment. The Veteran's personnel records also contain Air Force Form 910, Enlisted Performance Report, for the period from November 1993 to November 1994. It confirms that the Veteran was deployed to Incirlik Air Base in Turkey in support of Operation Provide Comfort, which is widely recognized as a humanitarian aid effort begun by the United States and its allies to aid and protect Kurdish refugees fleeing their homes in Iraq. It was noted that he was responsible for providing around-the-clock protection of US aircraft and personnel deployed in Turkey. Service treatment records, dated in May 1993, reveal that the Veteran had no mental health entries on file, and that he had qualified for security procedures. No psychiatric disability was found at the time of his separation examination from active service in May 1995 or within the first post-service year. Post-service records show that the Veteran began participating in individual therapy sessions at the Dallas Vet Center in 2007. Symptoms reported at that time included depression and nightmares. Subsequent VA treatment records, dated in May 2009, show Axis I diagnoses of panic disorder without agoraphobia; generalized anxiety disorder; PTSD; and major depression, recurrent, severe. The Veteran underwent a VA mental health PTSD assessment in June 2009 by a VA staff psychiatrist. At that time, he reported being deployed to the Incirlik Air Base in Turkey in August 1990, in support of Operation Provide Comfort. He reported being assigned to the 305th Security Police Squadron until June 1991, and then completing his active service while stationed in New Jersey. Stressors reported by the Veteran include: (1) U.S. and coalition forces being medivac'd to the hospital, while the Veteran's unit protected the runway airstrip; (2) dealing with several pipe bombs, including one dropped into the gas/fuel lines, because someone always tried to penetrate the security system; and (3) working alongside Turkish soldiers, whom the Veteran's unit did not get along with, and actually had weapons drawn against each other. Regarding this last stressor, the Veteran explained that he often had to "defuse situations;" and that there were reasons to fear that he and/or others might be killed, injured, or wounded as a result of the tension amongst personnel. The Veteran also made reference to crash sites that he worked in to retrieve bodies and body parts. Current symptoms reported by the Veteran in June 2009 include having disturbing dreams and nightmares about two or three times weekly; experiencing daytime intrusive thoughts, in response to stimuli; having consistent depression, and not enjoying things that he used to enjoy; and diminished concentration and short-term memory, and increased irritability. The Veteran also reported marital and familial discord, social discomfort, occupational difficulties, and avoidance of most people whenever possible. He struggled to keep himself motivated, and described emotional distance or detachment in relationships. The Veteran denied the presence of suicidal ideation, but acknowledged the presence of homicidal ideation a few days earlier. He then reported that his strong faith in his God kept him from following through. Following clinical evaluation, the Axis I diagnoses were PTSD, chronic; and major depressive disorder, recurrent, moderate. A GAF score of 53 was assigned. In rendering the Axis I diagnoses, the VA staff psychiatrist reasoned that the Veteran's clinical interview and reported symptomatology were consistent with those of other Veterans in this population, who have participated in noncombat experiences similar to those described by the Veteran. More recent VA treatment records show that the Veteran continued to undergo supportive psychotherapy, with medical evaluation and management. The Board finds that the Veteran's stated stressors, and in particular, that involving protecting Air Force personnel and equipment from bombs, relate to the fear of hostile military or terrorist activity. Furthermore, in June 2009, a VA psychiatrist confirmed that the claimed stressor is adequate to support a diagnosis of PTSD. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. "It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion." See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this case, the reviewing psychiatrist had full access to the Veteran's military and medical history. The Veteran accurately relayed his experiences in service. The Veteran's description of activities undertaken in service while deployed to Turkey are consistent with the circumstances of his military occupational specialty and are not otherwise contradicted by the record. The VA psychiatrist found that the Veteran met the diagnostic criteria for PTSD due to his stated stressors; therefore, the Board finds that the criteria for establishing service connection for PTSD have been met. The appeal is granted. ORDER Service connection for PTSD and a major depressive disorder is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs