Citation Nr: 1325581	
Decision Date: 08/13/13    Archive Date: 08/16/13

DOCKET NO.  07-31 997	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

S. Grabia, Counsel


INTRODUCTION

The appellant had active service from June 1966 to June 1988.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Louisville, Kentucky Regional Office has maintained jurisdiction over the case since that time.

The claim was before the Board in July 2012 at which time the Board reopened the issue of entitlement to service connection for an acquired psychiatric disability, to include PTSD; and, remanded the claim to the RO.  

The Board observes that, during the course of the appeal, individual unemployability was granted from March 30, 2005 for the Veteran's service connected disabilities.  

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The documents in this file have been reviewed and are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal.


FINDING OF FACT

The Veteran has currently diagnosed PTSD based on combat stressors related to his Vietnam service and such combat service is consistent with the circumstances of his service. 


CONCLUSION OF LAW

The criteria for service connection for an acquired psychiatric disorder to include PTSD have been met. 38 U.S.C.A. §§ 101, 1101, 1131, 5103(a), 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

I.  Veterans Claims Assistance Act

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Given the favorable disposition of the claim for service connection for an acquired psychiatric disability, to include PTSD, the Board finds that all notification and development action needed to fairly adjudicate such claim has been accomplished. The Board is granting service connection for an acquired psychiatric disability, to include PTSD, and this is the greatest benefit the Veteran can receive under the circumstances.  Any failure to notify or assist the Veteran is inconsequential and, therefore, at most, no more than harmless error.
Duties to Notify and Assist

II. Laws and Regulations

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. §§ 1110, 1131 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303(a) (2012).  For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b) (2012). 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) (2012). 

In addition, certain chronic diseases, including psychoses, may be presumed to have been incurred or aggravated during service if they become disabling to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113(West 2002 & Supp. 2012). 

Personality disorders are considered congenital or developmental defects and, therefore, generally are not diseases or injuries for the purposes of service connection. 38 C.F.R. § 3.303, 4.9 (2012); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996). However, if a disease or injury is superimposed over the congenital or developmental defect during service, service connection may be warranted for the resultant disability. VAOPGCPREC 82-90. 

Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with DSM-IV), (2) credible supporting evidence that the claimed in-service stressor(s) occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2011). 

In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2011)); 38 C.F.R. § 3.304(f) (2011). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id.  

If VA determines that the Veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the Veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.304(f) (2012). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id.  

If, however, VA determines that the Veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the Veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 

The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of posttraumatic stress disorder is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. 

Effective July 13, 2010, VA amended its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. 75 Fed. Reg. 39843 July 13, 2010). Specifically, the final rule amends 38 C.F.R. § 3.304(f)(3) as follows: 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 a 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 claimed 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. 

(Note: In this case, the appellant's stressor involves multiple rocket attacks upon Bien Hoa Air Force Base, Viet Nam during his period of service there.  In this factual basis, the Board finds that such activities falls within the parameters of "fear of hostile military or terrorist activity." As such, the new relaxed evidentiary rules apply to this case. 

In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  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. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498   (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331   (Fed. Cir. 2006). 

Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186   (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.

The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on her behalf be discussed in detail. Rather, the Board's 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).

III. Background

In a January 1993 stressor statement the Veteran reported being stationed at Bien Hoa Air Force Base from April 1968 until April 1969.  During this period he was under frequent rocket attacks while loading and unloading aircraft.  Subsequent to Vietnam, he was assigned to the 1st Combat Support Group at Langley Air Force Base, Virginia from 1969 to 1979 and had additional duties including honor guard and was called upon to bury countless casualties.  He also reported losing three friends in separate airplane crashes although these also occurred subsequent to his Vietnam service.  The first occurred during an air show at the Dulles Airport in Virginia when Major Joe Howard was killed when his plane crashed.   In December 1972 Captains Jerry Bolt and Fred Lollis were killed in an air show at Nellis Air Force Base, Nevada.  At the time the Veteran was a member of the USAF aerial demonstration team, the "Thunderbirds."

In a February 1993 VA PTSD examination, the Veteran reported serving 1 year in Vietnam at Bien Hoa Airport. This included loading and unloading civilian and military airplanes bringing GIs to and from Vietnam.  He saw no active combat, except that there were regular rocket attacks on the airport almost every night. He was never injured in any way.  He was in fear that a rocket would land in his bunk and kill him.  He denied flashbacks but had some thoughts of Vietnam every day.  The Veteran was in the Air Force for 22 years starting as an enlisted man and reaching the rank of captain.  He retired from service after receiving an unfavorable review from a higher grade officer.  He reported that approximately 1 month after service he had his first episode of major depression which included suicidal ideations, sleep disturbance, restless sleep, markedly lowered self image, anhedonia, weight loss, guilt, and shame.  Since service he has been drinking and was involved in at least 3 to 4 bar fights due to anger.  He has had a great deal of difficulty adjusting to civilian jobs.
  
The examiner noted that the Veteran was an intense, serious, depressed-sounding man.  His speech was somewhat slowed and he was somewhat circumstantial in describing things which were not pertinent.  He denied suicidal ideations but has had them in the past.  He denied hallucinations, delusions, obsessions, compulsions, and phobias.  He had violent tendencies when using alcohol in recent years. His anger appeared associated more with how he was treated upon leaving the military than with Vietnam. The examiner noted that the Veteran suffered from nightmares and sleep disturbance secondary to memories of persistent rocket attacks while in Vietnam.  Any concentration problems were more related to his depressed moods.  Other than this there were no clear symptoms of PTSD.  The diagnosis was PTSD, mild; major depression, recurring; delayed grief reaction, multiple losses; adjustment reaction to adult life with difficulty adjusting from military to civilian life and coming to grips with how his military service terminated.

In July 1995, the Veteran underwent a VA PTSD examination by a panel of two psychiatrists.  The examiners noted the previous diagnosis of PTSD was made without supportive symptoms other than sleep disturbance.  The Veteran wakes up each night at approximately 2 to 3 AM and cannot go back to sleep.  He has no memory of any nightmares. There was a minimal amount of other symptoms which could not be classified as secondary to Vietnam service. The Veteran had been married 4 times.  He reported drinking 4 to 5 drinks a day without any legal consequences.  He currently had been working as a veteran's counselor.  

The examiners determined that the Veteran had a limited amount of combat exposure in Vietnam with the exception of some incoming rockets which apparently occurred on a regular basis. Since returning from Vietnam he has had mild symptoms of various types none of which could be specifically related to his experience in Vietnam.  He reported sleep difficulty but no history related to Vietnam.  He was socially isolated, hypervigilant, and avoided 4th of July celebrations and fireworks.  Otherwise there were no significant symptoms that could be classified as secondary to PTSD.  Therefore, both examiners concluded that the Veteran does not meet the criteria for a diagnosis of PTSD.  He had a history of possible alcohol abuse; and, some passive aggressive personality traits.

A February 1996 letter from Louis J. Raimondo, M.D., includes records from February to March 1992 noting that the Veteran was seen and treated for an adjustment disorder with depressive mood.

VAMC mental health clinic report dated in June 2005 note the Veteran had been referred by his primary care physician after a positive PTSD screen. The clinician noted the Veteran had been married 5 times.  He denied tobacco use and reported drinking infrequently.  The diagnosis was an impression of partner relational problems; R/O PTSD.

In a July 2005 stressor statement he reported multiple stressors, including:

Numerous rocket attacks between April to December 1968 while at Bien Hoa Air Base, Vietnam. 
      
Watching as an F100 aircraft taking off and a bomb fell from the undercarriage and blew up killing the pilot.
 
performing perimeter duties in foxholes around the base.  There were numerous VC killed at the wires. 

      In April 1969 a rocket attack hit a warehouse and several fuel tanks ignited.  

After returning from Vietnam he was assigned as a member of a burial details unit.  

While assigned to Nellis Air Force Base in 1972, a friend Major Joe Howard was killed at a Dulles Airport air show crash.  

      In December 1972 2 pilots he knew were killed in another aircraft accident.  

In 1982 while conducting training with flying units towing targets, one crashed into the mountains in Canada.

In an August 2005 VA PTSD examination.  The Veteran presented his PTSD stressors as previously described.  The Veteran was casually dressed.  His grooming, hygiene, appearance, and eye contact were all good.  He was cooperative, and speech was normal.  His mood was appropriate.  There were no hallucinations or delusions.  The Veteran was administered the Personality Assessment Inventory and Millon Clinical Multiaxial Inventory-II.  Following the mental status examination, the examiner determined that the Veteran may meet some of the DSM-IV stressor criteria for PTSD.  The examiner opined that the Veteran did not necessarily suffer from PTSD, but may experience difficulties better explained by antisocial personality disorder and borderline personality disorder. In addition there may be some issues related to alcohol abuse. The diagnoses was alcohol abuse, antisocial personality disorder; and, borderline personality disorder.

October 2005 and November 2005 VA treatment records reflect that the appellant had an Axis I diagnosis of PTSD. 

Handwritten treatment notes dated in 2006 were received from Dr. DeLaRosa which reflects that he treated the appellant for "PTSD symptoms." A February 2006 record reflects that the appellant's PTSD symptoms intensity had diminished. An August 2006 treatment record indicates the appellant talked extensively about his PTSD.

In a November 2011 VA PTSD examination the examiner reviewed the claims file prior to examining the Veteran.  The Veteran acknowledged drinking a lot in service.  He characterized his drinking since service as, "very seldom." However he then acknowledged that he drank excessively, "usually (when he was) going through divorces.... I cold-cocked one of my wives.  I was that drunk and that pissed,"  The Veteran reported that he used cannabis on one occasion during active duty.  He denied further illicit drug abuse, or prescription drug abuse. 

The examiner noted that the Veteran reported the following stressors:

Stressor number 1- He was deployed to Bien Hoa Air Force Base Vietnam from 1966 to 1969.  The examiner noted there were records in the claims file referring to numerous rocket attacks occurring at Bien Hoa.  This met the criteria for a diagnosis of PTSD and as it relates to a fear of hostile military or terrorist activity.

Stressor number two- He witnessed an air plane taking off at Bien Hoa when a bomb attached to the plane dropped and killed the pilot.  This was not adequate to support a diagnosis of PTSD and it did not relate to a fear of hostile military or terrorist activity.

Stressor number three- He went out and helped the security police in foxholes around the perimeter at Bien Hoa. This met the criteria for a diagnosis of PTSD and as it relates to a fear of hostile military or terrorist activity.

The examiner however noted that the Veteran did not meet the full criteria for a diagnosis of PTSD.  The only applicable symptoms noted were anxiety and chronic sleep impairment.

The Veteran has been treated by Dr. DeLaRosa in 2006 for PTSD.  He also received mental health treatment from the VAMC in 2005 for PTSD.  A review of the available records reflect that although he was assigned this diagnosis by the civilian and the VA mental health professionals, the records do not refer to specific PTSD symptoms that the Veteran was experiencing.  Therefore the examiner noted that he could not give an opinion about whether the Veteran actually met the criterion for PTSD when he was receiving treatment in 2005 and 2006 or whether he did experience the symptoms and they have subsequently resolved.  The Veteran did meet the criterion for personality disorder NOS with antisocial and borderline traits.  The diagnosis was associated with his reported history of a suicide gesture in 1991, difficulty maintaining relationships, and a reference in the August 2005 VA examination to the Veteran being unfaithful in each of his six marriages. 

Moreover test results from the August 2005 VA examination refer to poorly controlled anger, limited remorse, risk taking, and limited capacity for empathy.  The examiner further noted that it was less likely as not that the personality disorder NOS was a result of the Veteran's military service, as personality disorder symptoms begin to develop during childhood.  

IV. Analysis

Initially, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran meets the criteria for a diagnosis of PTSD.  The July 1995, August 2005, and November 2011 VA PTSD examination reports do not reflect a diagnosis of PTSD.  However, the February 1993 VA PTSD examination noted a diagnosis of PTSD as did June, October and November 2005 VAMC mental health clinic records, and ongoing treatment for such.  Handwritten treatment notes dated in 2006 from Dr. DeLaRosa reflect that he treated the appellant for "PTSD symptoms." 

In addition, the Board finds that the Veteran's statements regarding his alleged stressors to be credible.  As noted above, the appellant's stressor include multiple rocket attacks upon Bien Hoa Air Force Base, Viet Nam during his period of service there.  The Board finds that such activities falls within the parameters of "fear of hostile military or terrorist activity," and are supported by the service evidence of record.  As such, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran's currently diagnosed psychiatric disability, to include PTSD is related to active service.  

Moreover, the post-service medical evidence generally supports this theory of ongoing symptomatology.  The Board notes that although the November 2011 VA examiner opined that the Veteran did not meet the full criteria for a diagnosis of PTSD, several clinicians noted that he did meet the criteria for PTSD and assigned this diagnosis.  

For these reasons, and with resolution of reasonable doubt in favor of the Veteran, service connection for an acquired psychiatric disability, to include PTSD, is warranted.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 


ORDER

Service connection for an acquired psychiatric disability, to include PTSD, is granted.



____________________________________________
Thomas H. O'Shay
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs