Citation Nr: 1325303	
Decision Date: 08/09/13    Archive Date: 08/13/13

DOCKET NO.  13-14 694	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Albuquerque, New Mexico


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel


INTRODUCTION

The Veteran had active military service from January 1941 to December 1943 in the Army and from December 1943 to November 1949 in the Air Force, including combat service during World War II. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico.  

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

The Veteran's PTSD had its onset in service.


CONCLUSION OF LAW

PTSD was incurred in active service.  38 U.S.C.A. §§ 1110, 1131, 1154, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In this decision, the Board grants service connection for the Veteran's PTSD, which represents a complete grant of the benefit sought on appeal.  As such, no discussion of VA's duty to notify and assist is necessary.

The Veteran claims that he has PTSD due to his military service.  Specifically, he maintains that it was caused by his being present and seeing the bombing of Pearl Harbor at the start of World War II in 1941.  He also reports that his PTSD was caused by serving as a bombardier on numerous missions in Europe during World War II and on one occasion having to bail out over enemy territory and avoid capture by the enemy for over two weeks while making his way back to allied lines.   

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including a psychosis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In order to establish service connection for the claimed disorder, there must be (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 current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

Regulations provide that a grant of service connection for PTSD requires the following: (i) if the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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; (ii) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (iii) medical evidence establishing a link between current symptoms and an in-service stressor; and (iv) credible supporting evidence that the claimed in-service stressor occurred.  38 C.F.R. § 3.304(f).  

The Board notes that during the pendency of this appeal, effective July 13, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  More specifically, the revisions liberalized the standards for establishing the occurrence of in-stressors involving a "fear of hostile military or terrorist activity."  See 38 C.F.R. § 3.304(f)(3).  

Where it is determined that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, his lay testimony regarding the claimed stressors is accepted as conclusive as to their actual existence, absent clear and convincing evidence to the contrary.  Where, however, VA determines that the Veteran did not engage in combat with the enemy, or that he did engage in combat with the enemy but the claimed stressor is not related to such combat, lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor.  Instead, the record must contain evidence that corroborates the Veteran's report as to the occurrence of the claimed stressors.  38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. §§ 3.304(d), (f); West v. Brown, 7 Vet. App. 70, 76 (1994).

It is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  Schoolman v. West, 12 Vet. App. 307, 310-11 (1999).  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

The Board finds that the Veteran engaged in combat during World War II.  The Board notes that letters dated in December 1941 document that the Veteran was stationed at Wheeler Field at the time that Imperial Japanese aircraft attacked American forces.  Service records also verify the fact that he flew 32 bombing missions over Europe with the 15th Air Force as a bombardier on a B-17 during World War II.  The Veteran's service personnel records also documented that in June 1944 his plan was shot down, he had a combat bail out, and was listed as missing in action for 19 days.  They also show that he returned in June 1944.  Moreover, the service treatment records show a diagnosis of "psychoneurosis, anxiety type, chronic, stress severe, manifested by apprehension, paver nocturnes, tension, fear of combat flying."  Thus, the Veteran is a "combat Veteran" and his lay statements regarding the claimed stressors can be accepted as conclusive evidence as to the actual existence of his claimed stressors.  38 C.F.R. § 3.304(f).  

The Board will next consider whether the claimant has a medical evidence diagnosing PTSD and medical evidence establishing a link between that PTSD and an in-service stressor.  Id.  In this regard, in May 2010 VA received an Assessment from the VetCenter in which the Veteran's Counselor both diagnosed PTSD and opined that it was due to the above documented stressors.  Specifically, the Counselor reported that after a review of his stressor events, his DD Form 214, his service personnel records, as well as after the appellant's completion of psychiatric testing (which testing was forwarded to VA in June 2010), that the claimant's psychiatric symptoms "fully meet the criteria for a diagnosis of posttraumatic stress disorder (PTSD) caused by exposure to combat events in World War II."  VA examiners in April 2010 and October 2011 had a different opinion as to whether the Veteran's psychiatric symptoms met the criteria for a diagnosis of PTSD.  Therefore, the Board finds that the evidence, both positive and negative, as to whether the Veteran's psychiatric symptoms met the criteria for a diagnosis of PTSD is at least in equipoise.  Thus, based on the Veteran's combat service and the medical opinion diagnosing him with PTSD due to the stressors that occurred during that service, service connection for PTSD is warranted.


ORDER

Service connection for PTSD is granted.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs