Citation Nr: 1323430 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-36 226 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from May 1953 to April 1955. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a September 2006 rating decision issued by the Regional Office (RO) in Cleveland, Ohio. The case is currently under the jurisdiction of the RO in Chicago, Illinois. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2011. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT Giving the benefit of the doubt to the Veteran, it is at least as likely as not that PTSD was caused by an in service incident. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board considered the regulations pertaining to the VA's statutory duty to assist the Veteran with the development of facts pertinent to his claim. Given the favorable action taken herein below, the Board finds that no further assistance in developing the facts pertinent to the Veteran's claims is required at this time. Service connection Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish a right to compensation for a present disability, a Veteran must show: "(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"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exists is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In general, medical evidence is required to establish a nexus to service. However, in the case of disorders listed in 38 C.F.R. § 3.309, a nexus also may be establish by evidence of continuity of symptoms since service. Service connection for PTSD requires medical evidence diagnosing the disorder in accordance with 38 CFR § 4.125(a), medical evidence linking current symptoms to an in service stressor, and, in some circumstances, credible supporting evidence that the claimed in service stressor actually occurred. 38 C.F.R. § 3.304(f). Prior to July 2010, the evidence necessary to establish that an in service stressor actually occurred depended upon whether the Veteran "engaged in combat with the enemy." 38 C.F.R. § 3.304(f); See also Hayes v. Brown, 5 Vet. App. 60, 66-67 (1993). If the evidence showed that the Veteran engaged in combat with the enemy or was a prisoner of war (POW) and the claimed stressor was related to those experiences, 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, his lay testimony alone was sufficient to establish the occurrence of the claimed in service stressor. If, however, the Veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor was unrelated to the Veteran's combat or POW experiences, some evidence corroborating the Veteran's lay statements is required in order to establish that an in service stressor actually occurred. 38 C.F.R. 3.304(f)(2) (2009). The only other exception to the requirement for verification of an in-service stressor in effect at that time involved cases when the Veteran was diagnosed with PTSD during service and the claimed stressor is related to that service. In such cases, the Veteran's lay testimony alone was sufficient to establish the occurrence of the claimed stressor, absent clear and convincing evidence to the contrary, provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service. 38 C.F.R. 3.304(f)(1) (2009). However, in July 2010 the exceptions to the stressor verification requirement were expanded. The current 38 C.F.R. § 3.304(f)(3) states: 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 the 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 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. Id. In this case, the Veteran contends that he developed posttraumatic stress disorder when he was in Austria because he saw another soldier get shot on a bridge. Part of Austria was occupied by the United States and part by the Soviet Union. The Veteran stated that an American soldier was crossing to the Russian side when he was shot. In is questionable whether this would qualify as fear of hostile military or terrorist activity as it was during the occupation of Austria in peace time and the United States was not involved in any military action against the Soviet Union at that time. Therefore, verification of the stressful incident is necessary. Generally, service records such as personnel records or responses from the Joint Services Record Research Center (JSRRC) are used to verify the occurrence of a Veteran's claimed stressor. In this case, service records do not provide any indication that a stressful incident occurred during service, and the Veteran failed to provide sufficient information to allow JSRRC to investigate his allegations. However, this case is somewhat unusual in that the Veteran provided a statement from a witness to the incident on the bridge. The Veteran's wife was with him at the time of this occurrence and she verified that they did in fact see another individual get shot on a bridge in Austria. The Veteran's daughter wrote a note stating that her parents talked about this incident at times. The Veteran submitted a written statement from an acquaintance who indicated that he remembered a soldier being shot in the city where the Veteran was stationed, although he did not witness the incident. The Board also notes that the Veteran's description of the incident has been consistent over time. Given the eyewitness account of the Veteran's wife, and the consistency of the Veteran's statements with other evidence of record, the Board concludes that the Veteran's stressor should be considered verified. In addition to a verified stressor, a Veteran also needs a diagnosis of PTSD in order to establish service connection for this disorder. In this case, there are several conflicting opinions concerning the diagnosis and whether any diagnosed mental disorder was related to the Veteran's military service. Various VA treatment records show a diagnosis of vascular dementia and no other Axis I diagnosis. A March 2010 record noted that the Veteran had "possible" PTSD. Some treatment records indicate that the Veteran did not seem to meet all of the criteria for PTSD. However other treatment records show a diagnosis of PTSD. The Veteran was examined by VA in May 2012. After interviewing the Veteran and reviewing the claims file, the examiner opined that the Veteran did not have PTSD or any other mental disorder related to his military service. The examiner explained that there were no behavioral or social changes, re-experiencing, or heightened physiological arousal symptoms due to service. There was no impairment of thought process, social functioning or post-military stressors and the Veteran reported normal activities of daily living. The examiner opined that the Veteran had a mild depressive disorder that was related to his multiple medical problems and not his service. However, the Board concluded that another opinion was necessary due to lack of explanation of some statements made by the examiner as well as some inconsistencies in the report. The Board obtained an expert medical opinion in March 2013. The examiner noted that, based on the May 2012 examination, while the Veteran met criterions A, B, D, and E for PTSD the Veteran did not seem to meet criterion C (avoidance and emotional numbing) or F (clinically significant distress or functional impairment), both of which would be necessary in order for the Veteran to meet the full criteria for PTSD. He noted that there was no evidence in the claims file to substantiate a diagnosis of PTSD. However, he observed that the claims file seemed to be incomplete. The specialist felt that, due to evidence of symptoms in the past, the Veteran had anxiety disorder NOS in remission. The specialist indicated that it was clear that the Veteran had a history of having symptoms related to a specific military stressor. The Veteran submitted a letter from his VA psychologist. The Veteran's VA psychologist indicated that he adamantly disagreed with the prior opinions of record. The VA psychologist indicated the Veteran had been diagnosed and treated with PTSD since March 2009 and further noted that it was based upon a traumatic incident during his service in Europe during the first years of the Cold War. The VA psychologist indicated that the traumatic incident, the account of reactions and symptoms since that event provide complete and authentic verification of the PTSD diagnosis. Significantly, he identified symptoms that could be associated with criterion C, such as isolation from social situations and episodes of emotional numbing interspersed with depressive episodes. The psychologist also explained how the Veteran met the other criteria for PTSD, which had already been established by prior examination. Although there remains significant disagreement about the nature and etiology of any mental disorder that the Veteran may have, the Board concludes that this disagreement is unlikely to be resolved by additional examination. While the VA examiners and March 2013 expert felt the symptoms fell short of a complete DSM-IV PTSD diagnosis, the VA psychologist explained why the Veteran meet the DSM-IV criteria. See Cohen v. Brown, 10 Vet.App. 128, 140 (1997) (finding that mental health professionals making a PTSD diagnosis "are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis"). All of the examiners seemed to indicate that the Veteran had at least some symptoms associated with PTSD, and the Veteran was distressed enough to seek psychological treatment. In light of this, the Board finds that the differing opinions place the evidence in equipoise. When, as here, the evidence is evenly balanced, the law requires that the Veteran be afforded the benefit of the doubt. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). As such, resolving all doubt in the Veteran's favor, the Board finds the Veteran had a diagnosis of PTSD during the appeal period. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Furthermore, both the March 2013 expert and the VA psychologist indicated that the symptoms stemmed from the traumatic event of witnessing a soldier get shot while crossing a bridge while stationed in Germany. Accordingly, the Board finds that service connection is in order. ORDER Service connection for PTSD is granted. ____________________________________________ HOLLY SEESEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs