Citation Nr: 1319471 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 09-46 581 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1983 to May 1992 and from August 2004 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board notes that the RO had originally adjudicated the issues of entitlement to service connection for PTSD and depression separately. The Veteran filed a notice of disagreement in August 2009 indicating that he was appealing the denial of service connection for PTSD with depression. The RO subsequently issued a statement of the case (SOC) that only addressed PTSD. Under such circumstances, the Board would ordinarily remand a claim for the issuance of a SOC. Manlicon v. West, 12 Vet. App. 238 (1999). However, a remand is not necessary in this particular case. The United States Court of Appeals for Veterans Claims (Court) has held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App 1 (2009). The Veteran in this case has been assessed as having PTSD and depression. Therefore, the Board has recharacterized the issue on appeal as reflected on the title page. A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, to include VA treatment records dated from August 2007 to January 2012. The Board notes that a supplemental statement of the case was not issued after receipt of these documents and that the Veteran has not submitted a waiver of the RO's initial consideration of that evidence. However, given the favorable disposition in the decision below, the Board finds that there is no prejudice in proceeding with a decision. FINDINGS OF FACT 1. The Veteran was awarded the Combat Action Badge. While he was on patrol in June 2005, an improvised explosive device (IED) was detonated approximately five feet from him. 2. The Veteran began experiencing psychiatric symptoms in service. 3. There is evidence relating his current PTSD and depression to his in-service stressor. CONCLUSION OF LAW PTSD with depression was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to obtain the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In the decision below, the Board has granted the Veteran's claim for service connection for PTSD and depression. Therefore, the benefit sought on appeal has been granted in full. Accordingly, regardless of whether the notice and assistance requirements have been met in this case, no harm or prejudice to the appellant has resulted. See, e.g., Bernard v. Brown, 4 Vet. App. 38 (1993); VAOPGCPREC 16-92. Law and Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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). Service connection for PTSD requires: (1) a diagnosis of the disorder made in accordance with the criteria of Diagnostic and Statistical Manual of Mental Disorders (DSM-IV); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. §§ 3.304(f), 4.125(a) (2012). The evidence necessary to establish the occurrence of a recognizable stressor during service will vary depending on whether the veteran "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60 (1993). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships 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). Prior to July 13, 2010, VA regulations and Federal court precedent decisions established that, if the claimed stressor is not combat related, the veteran's lay testimony regarding his in-service stressor is insufficient, standing alone, to establish service connection and must be corroborated by credible evidence. See, e.g., Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996); Doran v. Brown, 6 Vet. App. 283, 289 (1994). The Court has held that there is no requirement that such corroboration must be found in the service records. However, the credible supporting evidence cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Effective July 13, 2010, VA amended its rules for adjudicating disability compensation claims for posttraumatic stress disorder (PTSD) contained at 38 CFR § 3.304(f) to relax the evidentiary standard for establishing the required in-service stressor in certain cases. This revision adds to the types of claims the VA will accept through credible lay testimony alone, as being sufficient to establish occurrence of an in-service stressor without undertaking other development to verify the Veteran's account. VA's specific PTSD regulation, § 3.304(f), previously only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to accept the occurrence of the claimed in-service stressor. VA later amended its PTSD regulations to also accept the statements of Veterans who are former Prisoners-of-War and those with an in-service diagnosis of PTSD as sufficient to establish occurrence of an in-service stressor if they are consistent with the places, types, and circumstances of service. The primary result of the recent amendment of 38 CFR § 3.304(f) is the elimination of the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. The regulation amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. Specifically, 38 C.F.R. § 3.304(f)(3) , as revised effective July 13, 2010, provides 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. See 75 Fed. Reg. 39,852 (July 13, 2010) (codified at 38 C.F.R. § 3.304(f)). In each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. See 38 U.S.C.A. § 1154(a). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth at 38 U.S.C.A. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for PTSD with depression. The Veteran's service personnel records show that he was awarded the Combat Action Badge for engaging in combat with the enemy in June 2005. In April 2008, the United States Army Joint Services Records Research Center (JSRRC) verified the Veteran's stressor that an IED was detonated about five feet from him while he was on patrol in June 2005. As such, there is a corroborated in-service stressor. Thus, the remaining question is whether the Veteran has a current psychiatric disorder that is related to his military stressor. The Veteran's service treatment records are negative for any complaints, diagnoses, or treatment for a psychiatric disorder. However, his post-deployment heath assessment forms dated in August 2005, October 2005, and November 2005 reveal that he reported having symptoms of PTSD, to include feelings of great danger to his safety, nightmares, avoidant thoughts, and feeling startled. Moreover, during his November 2005 separation examination, a medical professional noted that the Veteran still felt on guard at separation, although he did not have suicidal or homicidal ideations. Following his military service, the Veteran has been treated for a psychiatric disorder. VA treatment records document a history of psychiatric treatment from August 2006 through January 2012. He has been variously diagnosed with PTSD and depression, and he was sometimes diagnosed with both disorders at the same time. For example, VA treatment records dated in January 2008 and February 2008 assessed him as having "PTSD/depression." The records also indicate that the Veteran has been homeless and has been treated at domiciliaries for his mental health issues. Throughout the VA treatment records, it is evident that the Veteran has consistently reported his combat stressor to health care providers. The records reflect that those providers have considered the Veteran's lay contentions and symptomatology, to include his stressor, and provided diagnoses of PTSD and depression. Indeed, a VA treatment record dated in August 2006 documents a diagnosis of depression not otherwise specified based on the Veteran's reports of serving in combat in Iraq. He had informed the treatment provider that he had nightmares and night sweats and indicated that he was always on guard and unable to relax. Thus, she made her assessment with consideration of the Veteran's military experiences and symptomatology. An August 2007 psychology consultation also reveals that the psychiatrist considered the Veteran's stressor involving his experience in Iraq and the IED stressor in particular. The psychiatrist considered the Veteran's detailed report of his stressor and symptomatology following combat, to include intrusive recall, increased aggression, sleep problems, and decreased interest. He diagnosed the Veteran with PTSD and recommended a treatment plan based on these factors. An August 2007 neuropsychological evaluation evaluated the Veteran for a traumatic brain injury, but determined that he did not have any symptoms with consistent with a post-concussive disorder or evidence of a significant traumatic brain injury. Instead, the clinical psychologist attributed the Veteran's psychological distress to his depression. Thus, it appears that his psychological symptoms are attributable to a psychiatric disorder as opposed to a brain injury. A March 2008 psychiatric treatment note further indicates the Veteran's PTSD is evidenced by exposure to trauma that involved actual or threatened death or serious injury or threat of such to self or others. These medical opinions and diagnoses contained in the VA treatment records were made by competent medical professionals upon a psychiatric examination of the Veteran during the course of treatment. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the persuasiveness of an opinion is based on whether the examiner was informed of the relevant facts in rendering a medical opinion). Mental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The Board does note that another August 2007 history and physical examination conducted by a nurse practitioner resulted in an Axis I impression of alcohol abuse and polysubstance abuse, but ruled out PTSD. The treatment record notes the Veteran's prior diagnosis of PTSD and substance-related mood disorder. However, the nurse practitioner in this case did not appear to have considered the Veteran's confirmed stressor. Rather, the Veteran was being seen specifically for the treatment of his alcohol dependence. Thus, for purposes of establishing a medical link between the confirmed in-service stressor and a current psychiatric disorder, the Board does not find this particular treatment note to be very probative. The Board finds the other aforementioned records to be more probative evidence; as such providers have clearly considered the Veteran's in-service stressor when diagnosing him with PTSD and depression. Based on the foregoing, the Board finds that there is reasonable doubt as to whether the Veteran currently has PTSD and depression that are related to his military service. To the extent that there is any reasonable doubt, that doubt will be resolved in the Veteran's favor. Accordingly, the Board concludes that service connection for PTSD with depression is warranted. ORDER Subject to the laws and regulations governing the payment of monetary benefits, service connection for PTSD with depression is granted ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012). Department of Veterans Affairs