Citation Nr: 1321017 Decision Date: 06/28/13 Archive Date: 07/05/13 DOCKET NO. 06-20 014 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse ATTORNEY FOR THE BOARD A. Bordewyk, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1990 to May 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California, which, in pertinent part, denied entitlement to service connection for PTSD. The Court has held that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (claim for benefits based on PTSD encompassed benefits based on other psychiatric disabilities). Therefore, the Board construes the Veteran's claim as encompassing entitlement to service connection for an acquired psychiatric disability, to include PTSD and depression, regardless of the precise diagnosis. The Veteran and her spouse provided testimony at a Board hearing at the RO in September 2011. A transcript is of record. FINDING OF FACT The Veteran has a currently diagnosed acquired psychiatric disability, specifically PTSD, which has been related by a VA mental health professional to stressors related to fear of hostile military action, and such stressors are consistent with the circumstances of her service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist a Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). As the Board is granting service connection for an acquired psychiatric disability, the issue on appeal is substantiated, and there are no further VCAA duties with regard to that issue. Wensch v. Principi, 15 Vet. App. 362, 367-68 (2001); see also 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"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (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). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Service connection may also be granted for a disease first diagnosed after discharge when all of 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 medical evidence diagnosing the condition; 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. If the evidence establishes that a 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, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). VA has amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads 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 [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. 75 Fed. Reg. 39843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The Veteran contends that she incurred PTSD as a result of multiple stressors which occurred during active duty service in support of Operation Desert Shield and Operation Desert Storm. VA treatment records confirm a diagnosis of PTSD. Therefore, the first criterion for service connection of an acquired psychiatric disability-a current disability or diagnosis of PTSD-has been established. The Veteran's personnel records document that she served in Southwest Asia, including in the Kingdom of Saudi Arabia (Saudi Arabia) from January to April 1991. She served as a unit supply specialist with the 137th Combat Support Company in support of Operations Desert Shield and Desert Storm. In statements received throughout the claim, during the September 2011 Board hearing, and to a February 2013 VA examiner, she reported that her unit received incoming SCUD missile fire, both in Saudi Arabia and from their location outside of Kuwait. She stated that he feared for her life as a result of the possibility and actuality of being attacked. Her reports are consistent with the circumstances of her service and are consistent with the known history of Operations Desert Shield and Desert Storm. During the February 2013 VA examination, the examiner diagnosed PTSD as a result of the Veteran's service during Operation Desert Shield and her fear of hostile military activity, namely incoming SCUD missile attacks. The VA psychiatrist has clearly found the Veteran's claimed stressor sufficient to support a diagnosis of PTSD and related the symptoms to that stressor. There is no clear and convincing evidence to the contrary and the stressor is consistent with the circumstances of her service. Hence, the Veteran's testimony establishes the occurrence of the claimed stressor. The stressor involves the fear of hostile enemy action. As the diagnosis of PTSD was based on that stressor, the criteria for service connection for PTSD have been met. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD, is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs