Citation Nr: 1322811 Decision Date: 07/17/13 Archive Date: 07/24/13 DOCKET NO. 10-01 588 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Young, Associate Counsel INTRODUCTION The Veteran performed active military service from June 1973 to September 1977, from January 1978 to April 1980, and from March to August 2003. He also performed active duty for training and inactive duty training at various times through October 2006. This appeal arises to the Board of Veterans' Appeals (Board) from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. During a December 2011 hearing before the undersigned Veterans Law Judge, the Veteran withdrew appeals for service connection for a neck disorder, a back disorder, and a right ankle disorder. The only issue remaining for adjudication is therefore service connection for PTSD. The case was remanded in April 2012 to afford the Veteran a VA examination. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT The Veteran's current PTSD is causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125(a) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Board is granting in full the claim of service connection for PTSD. Further discussion of the duties to notify and assist is not necessary. II. Legal Criteria Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). For service connection for PTSD, medical evidence diagnosing the condition is required in accordance with 38 C.F.R. § 3.304 (f); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD by a mental-health professional will, unless shown by evidence to the contrary, be presumed to be proper with respect to the sufficiency of stressor(s) and adequacy of symptomology. Cohen v. Brown, 10 Vet. App. 128, 140 (1997). Competent medical evidence includes evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau, 492 F.3d at 1372. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza, 7 Vet. App. 498. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. III. Factual Background The Veteran contends that his current PTSD is due to a non-combat parachuting incident in October 1975 and a non-combat near-drowning experience which occurred while training for submarine duty in January 1977, aboard the USS Skate. The Veteran's DD-214s indicate that he served as an air delivery man, a rifleman, and a scuba man. The Veteran was assigned to the Second Force Reconnaissance Company during both alleged stressors. See Veterans STRs. Service personnel records reveal that the Veteran was assigned to Key West, Florida in January 1977 to February 1977 for training. STRs confirm that the Veteran was aboard the USS Skate in February 1977. In February 1977, the Veteran received treatment for "sinus squeeze" following diving exercises with complaints of headaches. See STRs. During an individual therapy and intake session at the Salem Veterans Center (Veterans Center) in January 2007, the Veteran reported experiencing "occasional nightmares regarding a training incident in [the] Marines on sub where he became trapped [and] could have drowned." The Veteran also described a "life-threatening parachute jump a year or 2 prior to the sub incident." The Veteran was assessed as having "mild posttraumatic stress symptoms of nightmares [and] may have some mild depression." See Veterans Center Records. February 2007 Veterans Center records indicate that the Veteran received the following assessment during his treatment session: (Beck Depression Scale -Score -15) suggesting mild to moderate levels of depression; (PCL-M- Score 51) suggesting mild PTSD symptoms; (DAPS- Score- [blank]) client seems to be having difficulties making any connections between possible 'here [and] now' triggers that may be leading to re-experiencing through nightmares and memories. Outside of nightmares the client appears to have normal levels of functioning [and] adaptive coping skills." See Veterans Center Records. Veterans Center records also indicate that at a therapy session later in February 2007, the Veteran's noted assessment was "PTSD re-experiencing traumatic events of downing [and] parachute not opening. Nightmares of traumatic events interfering [with] sleep patterns causing functional (mild) impairments.)" See Veterans Center Records. In a February 2007 PTSD Questionnaire, the Veteran was directed to provide his PTSD stressor; he described one stressor by stating that "a small crack in the seal of the [submarine] side door allowed the escape trunk to flood when I opened the vent valve." The Veteran indicated that water flooded his air bubble quickly and added additional weight to the nose of the submarine. He recalled hitting his head, blacking out briefly, and chocking on sea water. The Veteran reported that he regained composure and that he realized that he was trapped and alone. The Veteran observed that the pressure gauge indicated that the submarine had dropped from a training depth of approximately 35 feet to 91 feet. See PTSD Questionnaire. In the May 2007 closing summary of the Veteran's treatment records from the Veterans Center, the following notation was documented: "the client did experience some extreme stressors while in the military, both being life-threatening. A near drowning experience during a training exercise on a sub lead to PTSD [with] symptoms of re-experiencing indicated by occasional flashbacks and nightmares." The closing summary assessment of the Veteran was "Mild PTSD of re-experiencing indicated by an occasional nightmare regarding a drowning (near) experience in military." See Veterans Center Records. The RO attempted to obtain deck logs from the USS Skate in order to corroborate the Veteran's stressor. In January 2008, the RO received a notification letter that stated that "the records you seek have not been made available to the public to date." See January 2008 National Archives and Records Administration Letter. In May 2008, the Veteran submitted a statement describing the October 1975 parachute incident; he described that upon exiting the plane, that he "hit the side of the plane twice [and] than [I] flipped. When I flipped, my parachute had already started to deploy, my risers caught the frame of my ruck sack, tearing it from my legs." The Veteran further described that the pack and radio he was carrying flew up and hit him in his face; he landed with the pack and radio on his face, which "caused a second impact." See May 2008 Veteran's Statement. In October 2008, the RO received a statement from the Veteran's wife, R. A., in which she described the changes that she observed in her husband during their marriage. R. A., referring to January 1977, stated that "a little after that event I noticed a difference in the way he was sleeping. He was restless, tossed and turned a lot, he would have nightmares from time to time." R. A. also described that during the Veteran's nightmares that the Veteran "would just start screaming, he would be almost stiff as if something was holding him down." She described the Veteran's screams as "not words per say but noise like he was frightened." She also stated that the Veteran told her of an incident during a National Guard drill in which "he woke up the entire squad bay of soldiers" due to an "episode." See R. A. October 2008 Letter. The Veteran also submitted a buddy statement in October 2008; the Veteran's comrade stated that "on one morning a few of us were awaken[ed] by someone who was having a nightmare. He was making a high pitched whine as if he was being tortured. I[t] really freaked me out when I found out it was [the Veteran]." "He sounded like a little boy being deathly frighten." See October 2008 W. J. Buddy Statement. The Veteran also provided a "jump log" which purports to indicate parachute jumps performed by the Veteran during service. According to the jump log, a "Recon Force" jumped to an "unknown" location on the night of October 13, 1975, with one "stick position" from a "C1-A" aircraft. The jump log also indicates that the MCI-1 parachute was used during the October 13, 1975 jump; the type of jump described as "equipment tactical." See Jump Log. During a December 2011 Travel Board Hearing the Veteran reasserted his claimed in-service stressors with details consistent with Veterans Center Records. The Veteran described experiencing nightmares of involving "submarines" and "being confined." The Veteran also discussed in detail the October 1975 parachute accident, also consistent with his previously documented accounts. See Board Hearing Transcript. During a September 2012 Initial PTSD VA Examination, the Veteran consistently described the non-combat parachuting incident in October 1975 and a non-combat near-drowning experience which occurred while training for submarine duty in January 1977. Upon interviewing the Veteran, the VA examiner opined that "it is at least as likely as not that his PTSD symptoms are related to the two traumatic incidents described above." The examiner continued by stating that the incidents described by the Veteran "are clearly of sufficient severity as to be causative of PTSD." The examiner stated the rationale for his opinion is "based on the manner that he consistently and very genuinely described these events on interview today;" the examiner added that the Veteran described the same events during the examination consistent with his testimony at the Board hearing under oath in December 2011. See VA Initial PTSD VA Examination. IV. Analysis The Board finds that entitlement to service connection for PTSD is warranted. The Veteran is currently diagnosed with PTSD in accordance with 38 C.F.R. § 4.125(a) (2012). As detailed above, the Veteran's current diagnosis of PTSD is linked to the in-service non-combat parachuting incident in October 1975 and a non-combat near-drowning experience which occurred while training for submarine duty in January 1977. See VA Initial PTSD VA Examination. Service personnel records verify that the Veteran was assigned to the Second Force Reconnaissance Company and corroborate that the Veteran was participating in training exercises, as described by the Veteran, during the time periods in which both alleged stressors occurred. See Jump Logs; see also STRs. Due to the consistency of his statements when describing his in-service stressors and the service documents which corroborate that the Veteran was in training during the pertinent dates, the Board finds that the Veteran is both competent and credible in his accounts of the non-combat parachuting incident in October 1975 and a non-combat near-drowning experience in January 1977. In the absence of clear and convincing evidence to the contrary of the Veteran's asserted in-service stressors, and because both the non-combat parachuting accident and the non-combat submarine diving accident occurring during training are consistent with the Veteran's service, the Veteran's statements alone are sufficient to establish the occurrence of the claimed in-service stressors. See 38 C.F.R. § 3.304(f). The Board concludes that the preponderance of the evidence weighs in the favor of the Veteran, as his claimed stressors have been associated with his current PTSD, entitlement to service connection for PTSD is granted. ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs