Citation Nr: 1321682 Decision Date: 07/08/13 Archive Date: 07/18/13 DOCKET NO. 09-42 690 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. M. Celli, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1963 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office in Hartford, Connecticut. FINDINGS OF FACT 1. The Veteran is in receipt of the Purple Heart Medal, and his service personnel records reflect that he participated in combat operations against Communist forces in defense of the Da Nang Republic of South Vietnam and in Operation Orange in the Lap Thuan Province. 2. The Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 3. The Veteran has a diagnosis of PTSD based on combat-related stressors. CONCLUSION OF LAW PTSD was incurred in active duty. 38 U.S.C.A. §§ 1101, 1110, 1154, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 describes VA's duties 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 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.326 (2012). As the benefit sought is granted in full in the decision below, further discussion as to VA's duties to notify and assist are rendered moot. Legal Criteria Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. 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). VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he has PTSD as the result of traumatic events during active duty. He contends that his PTSD stems from being wounded during combat on June 6, 1966 outside of Da Nang. The Veteran states that as he went to rescue a wounded Marine, he was shot with an AK-47 two times in the right leg up to the scrotum, and as he got into a medical evacuation helicopter, he was shot in the upper left arm. The Veteran is service-connected for gunshot wound with fracture, right femur. The Veteran's service personnel records show he participated in combat operations against Communist forces in defense of the Da Nang Republic of South Vietnam and in Operation Orange in the Lap Thuan Province. Service treatment records reflect that the Veteran sustained fragmentation wounds in the upper left arm and a gunshot wound to the upper right leg in June 1966. The records do not demonstrate complaints of, treatment for, or a diagnosis of PTSD or any other acquired psychiatric disorder. A January 2006 VA treatment record indicates the Veteran screened positive for PTSD. A February 2006 VA treatment record notes the Veteran had depressive symptoms in the setting of lifestyle changes related to injuries and being forced into retirement. The VA physician, Dr. Richard Yun, noted the Veteran had some anxiety and stress symptoms related to combat experience in Vietnam, which probably did not currently meet the criteria for a formal PTSD diagnosis. Dr. Yun diagnosed moderate depressive disorder, recurrent. A March 2006 VA treatment record shows an assessment of depression and PTSD, with improving mood and anxiety. In June 2006, Dr. Yun noted that in addition to depression, the Veteran endorsed some mild subclinical PTSD-like symptoms, including occasional re-experiencing of combat in Vietnam. According to an October 2006 VA treatment record, the Veteran reported that his depression started when he was forced into retirement in 2003 due to his back injuries. In December 2006, the Veteran did not report any PTSD symptoms. However, a VA physician, Dr. Daniel Mathalon, found the Veteran could have been reluctant to report his symptoms because he stated that he did not "believe in that PTSD stuff." It was noted that the Veteran might have had on-going avoidance symptoms as evidenced by his comment that he was not going to visit a friend with whom he had served despite wanting to see the friend. An April 2007 VA treatment record indicates the Veteran's PTSD symptoms remained minimal and mostly included prominent memories of napalm bombings when reminded by footage of the Iraq War on television. Dr. Mathalon noted that the Veteran seemed to make little effort to avoid watching the news as he did not seem to be particularly bothered by those memories at the time. In January 2008, a VA physician, Dr. Kirsten Wilkins, found that the Veteran's reported symptoms made a diagnosis of PTSD quite likely. The Veteran reported nightmares that came in clusters of several days, with none for several weeks at a time. The Veteran also stated that his nightmares began approximately 20 years after service and had been episodic since service. The Veteran also reported hypervigilance as well as avoidance of talking about his war time experience. A March 2008 VA treatment record shows the Veteran and Dr. Wilkins spoke about his history of nightmares, recreating military events, mood symptoms, and hypervigilance that began to occur somewhat after his military service. Dr. Wilkins noted that these symptoms worsened significantly several years prior in the context of speaking with a friend who contacted him about trying to get a silver star for his military service. The Veteran also discussed his episode of injury during which he was shot trying to rescue fellow soldiers in Vietnam. Additional VA treatment records dated in March 2008 and April 2008 reflect assessments of chronic pain and symptoms consistent with PTSD, including re-experiencing, avoidance, hypervigilance, and mood symptoms. In April 2008, the Veteran underwent VA examination in connection with his claim. The VA examiner reviewed the Veteran's electronic medical record and performed a clinical interview; however, the claims file was not available for review. The VA examiner found the Veteran presented primarily with depressive symptoms and prominent preoccupations with his medical condition. With respect to PTSD symptoms, the VA examiner determined that there was no clinical evidence supporting symptoms of avoidance or emotional numbing. The Veteran had some re-experiencing symptoms with re-thinking and remembering experiences of Vietnam. The Veteran reported that two events, namely, the initiation of the Gulf War and his own work-related accidents, triggered memories of being in Vietnam and being wounded in Vietnam. The Veteran described having some sleep disturbance on occasion due to nightmares of experiences in Vietnam. The VA examiner found it significant that the Veteran's descriptions of his memories were not imbued with anxiety but rather sadness and guilt, both stemming from seeing his friends get hurt, wounded, or killed. The Veteran felt that he had served competently in Vietnam but regretted that he was not allowed to return to the war theatre following his last combat injury. The VA examiner noted the Veteran's combat injuries and his receipt of the Purple Heart Medal but found it significant that the Veteran did not report or show signs of anxiety. Rather, the Veteran focused on trying to help his friend on one occasion when both of them were shot. The April 2008 VA examiner diagnosed adjustment disorder with depressive affect; alcohol abuse in full remission; and sub-threshold PTSD. The VA examiner reported that the Veteran's depressive symptoms, in his own words, were clearly and directly linked to his work accident that he suffered five years prior and hence, the VA examiner diagnosed adjustment disorder with depressive reactions as opposed to major depressive disorder. With regard to PTSD, the VA examiner found that while the evidence most clearly pointed to some re-experiencing symptoms, the Veteran's memories were not imbued with anxiety but rather sadness and guilt about the loss of life in the Vietnam War and the current war situation. The Veteran did have some irritability toward the government for their ineptness in carrying out the war. The Veteran showed no symptoms of avoidance or emotional numbing, and there was clinical evidence that suggested the Veteran had close interpersonal relationships, not only with his family but with some friends as well. A June 2008 VA treatment record shows an assessment of chronic pain as well as symptoms consistent with PTSD, including re-experiencing, avoidance, hypervigilance, and mood symptoms. The Veteran reported that these symptoms had been episodic since his departure from Vietnam and most likely reoccurred recently in the setting of worsening pain and reminders of Vietnam caused by the war in Iraq. In October 2008, the Veteran reported recurring nightmares and flashbacks of combat and of being wounded and hospitalized during active duty. The Veteran experienced remorse and guilt and felt that being a Vietnam Veteran was the worst thing in society. The Veteran reported being distrustful of people and reluctant about treatment. He stated that he was not going to return to VA for treatment because he was not service-connected and did not want to take time and services away from others who might need them more. The Veteran described starting to avoid people and becoming socially withdrawn, with decreased interest in significant activities. He stated that he felt detached from others and had a sense of a foreshortened future. The Veteran described symptoms that included difficulty sleeping or relaxing, increased arousal, chronic depressed mood, anhedonia, and feelings of guilt and worthlessness. He stated that he had experienced these same symptoms before but had been able to cope with them previously. His hospitalization, pain, and retirement, however, had overwhelmed his previous strategies and now he felt hopeless. The Veteran's treating physician, Dr. Icelini Garcia-Sosa, diagnosed PTSD, chronic with delayed onset with major depressive disorder, recurrent, and rule out depressive disorder secondary to general medical condition. Dr. Garcia-Sosa found the Veteran continued to experience depressive and posttraumatic symptoms. A November 2008 VA treatment record shows the Veteran spoke about nightmares, continuous feelings of guilt and worthlessness due to being a Vietnam Veteran, and feelings of betrayal and deceit from the government and VA. With respect to the criteria for a diagnosis of PTSD, Dr. Garcia-Sosa found the Veteran experienced traumatic events and serious injuries during active duty and now responded with helplessness and depression. The traumatic events were also re-experienced, even more so now since the Veteran's recent injuries. Further, the Veteran was less able to distract himself with alcohol as he was longer drinking. The Veteran described experiencing recurrent and intrusive recollections of the events, such as images, thoughts, and dreams. The Veteran had persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. In this respect, the Veteran refused referral to the PTSD clinic because he avoided thinking about his memories and thought that other veterans' memories would only reactivate his own. The Veteran had markedly diminished interest and participation in significant activities, feelings of detachment and estrangement from others, and a restricted range of affect. Dr. Garcia-Sosa diagnosed major depressive disorder and PTSD, with chronic pain, and noted the Veteran continued to experience mostly posttraumatic symptoms. Additional VA treatment records from March 2009 to December 2009 reflect diagnoses of major depressive disorder and PTSD. The Veteran underwent additional VA examination in April 2010. The VA examiner reviewed the Veteran's claims file, medical records, and performed a clinical evaluation. The VA examiner noted the Veteran was being treated for depression and PTSD by VA physicians. The VA examiner also noted the Veteran's in-service injuries and the Veteran's comments that he considered the third in-service wound particularly traumatic as he had nearly lost his leg. In light of the evidence, the VA examiner considered the overall level of the Veteran's traumatic exposure as high and found the Veteran had an in-service stressor that met the DSM-IV criterion. Diagnostic and Statistical Manual of Mental Disorders, Fourth edition, American Psychiatric Association (1994). The Veteran attributed intrusive re-experiencing and hypervigilance to PTSD. The VA examiner determined that the Veteran presented PTSD symptoms of trauma re-experiencing, heightened physiological arousal, and associated features, including disillusionment and demoralization. The Veteran did not have symptoms of avoidance or numbing and reported re-experiencing smells and sounds of Vietnam rather than the traumatic events. His heightened arousal caused poor sleep every night and constant vigilance. The Veteran was also quite disillusioned with the government and demoralized over his physical condition. On the PTSD checklist, the Veteran endorsed 5 "B" items, 6 "C" items, and 5 "D" items. The VA examiner found the test appeared valid, although the Veteran had an incentive to score high since he was seeking compensation for PTSD. The VA examiner found the PTSD psychometric measures were consistent with a diagnosis of PTSD. The VA examiner diagnosed depression, nicotine dependence, alcohol abuse in extended remission, and subclinical PTSD. The VA examiner determined that the Veteran's depression and chronic pain were causing poor sleep, poor appetite, difficulties with concentration, social isolation, and irritability. His PTSD symptomatology caused hypervigilance, poor sleep, and irritability. With respect to the diagnostic criteria for PTSD, the VA examiner found the Veteran had a history of a traumatic in-service event, physiological reactivity on exposure to cues of the event, and persistent symptoms of increased arousal. However, because the Veteran did not endorse symptoms of numbing or avoidance, he did not meet the full diagnostic criteria for PTSD. A June 2010 VA treatment record reflects that the Veteran had chronic symptoms of re-experiencing trauma, which included nightmares and flashbacks, avoidance of stimuli associated with the trauma, exacerbation of symptoms after a more recent hospitalization, markedly diminished interest and participation in significant activities, feelings of detachment and estrangement from others, and a sense of a foreshortened future. The assessment was major depressive disorder and chronic PTSD, with chronic back and lower extremity pain. Subsequent VA treatment records show the Veteran continued to experience chronic pain and mood changes, which also triggered flashbacks, nightmares, and hypervigilance. The diagnoses reflected that the Veteran had PTSD, late onset and pain-related, depression, and chronic pain problems. First, the evidence establishes that the Veteran engaged in combat with the enemy during active duty. In addition, the Veteran's claimed stressor of being wounded during active duty is related to that combat, and the Board finds the Veteran's stressor is consistent with the circumstances of his service, to include his duties as an infantryman, and is confirmed by service treatment records. 38 U.S.C.A. § 1154(a). Therefore, in light of the absence of clear and convincing evidence to the contrary, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). As such, the Board finds the Veteran has established an in-stressor for purposes of service connection for PTSD. Here, however, there are conflicting medical opinions regarding whether the Veteran has a current diagnosis of PTSD related to his verified in-service stressor. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the United States Court of Appeals for Veterans Claims (Court) has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In this case, VA examiners in April 2008 and April 2010 did not find that the Veteran met the full criteria for a diagnosis of PTSD; rather, the VA examiners diagnosed adjustment disorder with depressive effect and sub-threshold PTSD and depression and subclinical PTSD, respectively. In particular, both VA examiners noted that although the Veteran had symptoms that included re-experiencing, heightened physiological arousal, and hypervigilance, the Veteran did not report symptoms of avoidance or emotional numbing. In addition, the April 2008 VA examiner found it significant that the Veteran's memories were not imbued with anxiety. Upon review, however, the Board affords these VA examination reports less probative value than the other clinical evidence of record. In particular, the Board observes that multiple VA treatment records reflect consistent reports of the Veteran's avoidance symptoms. Additionally, in February 2006, Dr. Yun noted the Veteran had some anxiety and stress symptoms related to combat experience in Vietnam, and the March 2006 VA treatment record shows an assessment of depression and PTSD, with improving mood and anxiety. Further, VA treatment records indicate the Veteran had a history of alcohol abuse, and in November 2008, Dr. Garcia-Sosa found it significant that the Veteran was less able to distract himself from re-experiencing the traumatic events without the use of alcohol. Moreover, Dr. Garcia-Sosa found the Veteran demonstrated persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness. The Board acknowledges that there is no requirement that additional evidentiary weight be given to the opinion of a medical provider who treats a veteran; in fact, courts have repeatedly declined to adopt the "treating physician rule." See White v. Principe, 243 F.3d 1378, 1381 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993). However, in this case the Board affords significant probative weight to the treating physicians' reports as they were based on years of clinical evaluations of the Veteran. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). In addition, other VA physicians corroborated the PTSD diagnoses. In this respect, where there is a diagnosis of PTSD by a mental health professional, it is generally presumed to be in accordance with 38 C.F.R. § 4.125(a), and the stressors on which such a diagnosis are based are presumed to be sufficient to cause the Veteran's PTSD. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Furthermore, Dr. Garcia-Sosa thoroughly described the Veteran's symptoms in relation to the requisite criteria for a PTSD diagnosis. Therefore, the Board finds the diagnoses of PTSD demonstrated in the VA treatment records throughout the pendency of the appeal deserve greater probative value than the April 2008 and April 2010 VA examination reports. In view of the foregoing, the Board finds the probative clinical evidence of record demonstrates that the Veteran has a diagnosis of PTSD based on combat-related stressors. Resolving the benefit of the doubt in favor of the Veteran, the Board finds service connection for PTSD is warranted. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs