Citation Nr: 1325102 Decision Date: 08/07/13 Archive Date: 08/13/13 DOCKET NO. 09-03 354A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), generalized anxiety disorder, and a depressive disorder. REPRESENTATION Appellant represented by: Michael T. Sullivan, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran had active service from December 1965 to December 1967, including service in the Republic of Vietnam. This matter originally came before the Board of Veterans' Appeals (Board) on appeal from the February 2008 rating decision of the New York, New York, Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in May 2013. A transcript has been incorporated into the Virtual VA electronic claims file. The Board notes that although the Veteran's October 2006 claim specifically claimed only service connection for PTSD, other psychiatric disorders (an anxiety disorder and a depressive disorder) have been raised by the record and the Board has recharacterized the claim as reflected on the title page. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). FINDING OF FACT An acquired psychiatric disorder is related to in-service events. CONCLUSION OF LAW Resolving reasonable doubt in the Veterans' favor, an acquired psychiatric disorder, to include PTSD, an anxiety disorder, and a depressive disorder, is related to service. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). The condition of an acquired psychiatric disorder, to include PTSD, anxiety, and depression is not considered a "chronic disease" listed under 38 C.F.R. § 3.309(a) (2012); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). To establish entitlement to service connection for PTSD a veteran must provide: (1) medical evidence diagnosing PTSD; (2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125(a), which simply mandates that, for VA purposes, all mental disorder diagnoses must conform to the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). See 38 C.F.R. § 3.304(f). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board finds that VA has previously established the occurrence of an in-service verified stressor event. The Veteran has competently reported that during service in the Republic of Vietnam he drove through a mine field and witnessed the wounding of several of his platoon members. Further, the Board finds that the weight of the competent medical evidence of record establishes current diagnoses for PTSD, anxiety, and depression. Specifically, in a January 2008 VA PTSD examination, the examiner found that although the Veteran did not meet the DSM-IV criteria for PTSD, he did meet the criteria for an anxiety disorder. Subsequently, in a May 2009 VA treatment record, his treating VA psychiatrist diagnosed PTSD, anxiety, and depression. In a June 2011 VA treatment note (in Virtual VA), he was again diagnosed with PTSD. In a December 2011 VA treatment note, diagnoses of PTSD and an anxiety disorder were noted. Next, the Board finds that the evidence is at least in equipoise as to whether any of the Veteran's currently-diagnosed psychiatric disorders, including PTSD, anxiety, and depression are related to service. Weighing against the claim is the January 2008 VA examination report. Specifically, the examiner found that the Veteran had not met the DSM-IV criteria for PTSD and further opined that an anxiety disorder was less likely as not due to the events occurring during service. Based on psychometric testing and an interview with the Veteran, the January 2008 examiner opined that the reports of mild emotional lability and memories of the Veteran's experiences in Vietnam were found to be likely the result of, rather than the cause of his an anxiety disorder and depression. Weighing in favor of the claim for service connection are VA psychiatric reports dated May 2009 and September 2009. In the May 2009 VA psychiatric report, the psychiatrist noted that the Veteran was evaluated on three separate occasions (including one joint session with his wife). Upon mental status examination and after interviews with the Veteran and his wife, the psychiatrist opined that the Veteran had no pre-military mental disorder and was, by his wife's account, a happy, relaxed, sociable, and well-adjusted man. During post-military period, he experienced a full-range of PTSD symptoms, including re-experiencing, hyperarousal, nightmares, flashbacks, would over-react to loud noises. The psychiatrist noted that, over the years, PTSD receded to the background and an anxiety disorder symptoms "took hold." Although the psychiatrist noted that the Veteran was not treated in the early years for PTSD or an anxiety disorder, his employment seemed to distract him from his symptoms. PTSD and an anxiety disorder symptoms were found to have gradually escalated since his retirement. The Veteran's anxiety disorder was noted as developing slowly, steadily worsening, and often becoming intolerable during periods of stress. The psychiatrist diagnosed, based on the DSM-IV criteria, an anxiety disorder causally related to PTSD, PTSD by history, and depressive disorder relating to an anxiety disorder and PTSD. He recommended that the Veteran file a claim for an anxiety disorder as it started after service, in the form of PTSD, and was causally related to PTSD. In a subsequent September 2009 VA psychiatric note, the psychiatrist clarified his previous opinion and stated that the Veteran's "predominant effects from the terrifying events in the field were both an anxiety disorder and PTSD." It was further explained that in the DSM-IV, PTSD is classified under an anxiety disorder disorders which included panic disorder, phobic disorder, an anxiety disorder, OCD, and PTSD. Upon review of the evidence of record, both lay and medical, the Board finds that the evidence is at least in relative equipoise as to whether the currently-diagnosed psychiatric disorders, including PTSD, anxiety, and depression are related to service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for an acquired psychiatric disorder is warranted. Finally, VA has a duty 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, 3.326(a). The Board is granting in full the benefit sought on appeal. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. ORDER Service connection for an acquired psychiatric disorder, to include PTSD, an anxiety disorder, and a depressive disorder, is granted. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs