Citation Nr: 1325976 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 07-23 527 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active service from November 1961 to August 1965 and from August 1967 to August 1969. He also served in the United States Naval Reserve from April 1984 to April 1990 during which he had periods of active and inactive duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Nashville, Tennessee. In October 2010, the Board remanded the Veteran's claim to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. The Board observes that, in February 2007, the Veteran submitted a claim for service connection for type II diabetes and a skin disorder, including as due to his exposure to Agent Orange. In a March 2007 letter, the RO advised the Veteran that consideration of his claim may be delayed. See Haas v. Nicholson, 20 Vet. App. 257 (2006). However, Haas was subsequently reversed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) and, in January 2009, the United States Supreme Court (Supreme Court) denied a petition for further review. Haas v. Nicholson, 20 Vet. App. 257 (2006), rev'd sub nom. Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008), cert denied 129 S. Ct. 1002 (2009). Hence, the Veteran's claim, based on in-service exposure to herbicides, may now be addressed. As such, the matter of entitlement to service connection for type II diabetes and a skin disorder, including as due to exposure to Agent Orange, is referred to the Agency of Original Jurisdiction (AOJ) for appropriate development and adjudication. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the objective and probative medical evidence is in equipoise as to whether he has PTSD related to a stressful event during his period of active military service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103(A), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for PTSD herein constitutes a complete grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 and the implementing regulations. The Veteran asserts that he has an acquired psychiatric disorder, including PTSD, related to his active service. Thus, he contends that service connection is warranted for his claimed disorder. Upon review of the record, the Board finds that the evidence is in relative equipoise. As such, affording the Veteran the full benefit of the doubt, the Board finds that service connection is warranted for PTSD. When a Veteran seeks benefits and the evidence is in relative equipoise, the Veteran prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303, a Veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran seeks service connection for PTSD. Prior to July 13, 2009, service connection for PTSD required that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2009); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2012). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat Veterans. See 75 Fed. Reg. 39,843-39,852 (effective July 13, 2010) (codified at 38 C.F.R. § 3.304(f)) (2012). Section 3.304 (f) was amended to include a new paragraph (f)(3) that reads as follows, in pertinent part: (f)(3) 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 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. See 75 Fed. Reg. 39843-51 (July 13, 2010) and corrective notice at 75 Fed. Reg. 41092 (July 15, 2010). If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002 and Supp. 2012). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in-service stressor actually occurred is also required. 38 C.F.R. § 3.304(f). See YR v. West, 11 Vet. App. 393, 397-399 (1998) (credible evidence is not limited to service department records and can be obtained from any source); see also Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. at 138; Suozzi v. Brown, 10 Vet. App. 307 (1997). In a December 2005 written statement, the Veteran reported that he was bothered that he served on an aircraft carrier that launched planes sent to kill people, although the evidence does not show that he served in combat. In August 2006, he contended that his alleged stressful events involved witnessing a fellow seaman (identified as F.V.) sustain a hand injury while aboard the USS AMERICA near Vietnam in mid 1968, witnessing two men jump ship, and hearing pilots verbally wonder how many people they would kill that day. Then, during his December 2010 VA psychiatric examination, the Veteran reported fear associated with witnessing frequent plane landings and take-offs aboard the aircraft carrier to which he was assigned during the Vietnam War. The planes were loaded with bombs that frightened him. He could hear explosions and gunfire day and night from a distance. His ship was large and had to be offshore but he described it as in a combat zone. The starting point for any determination with regard to PTSD is whether there is a "stressor." Under all versions of the controlling regulation, there must be credible supporting evidence that the claimed in-service stressor(s) actually occurred. 38 C.F.R. § 3.304(f). The question of whether the Veteran was exposed to a stressor in service is a factual determination and VA adjudicators are not bound to accept such statements simply because treating medical providers have done so. See Wood v. Derwinski, 1 Vet. App. 190 (1991); Wilson v. Derwinski, 2 Vet. App. 614 (1992). The existence of an event alleged as a stressor that results in PTSD (though not the adequacy of the alleged event to cause PTSD) is an adjudicative, not a medical, determination. Zarycki v. Brown, 6 Vet. App. 91 (1993). As the Veteran does not allege that he engaged in combat, and as his reported stressors are not related to combat, his assertions, standing alone cannot, as a matter of law provide evidence to establish that an in-service event claimed as a stressor occurred. See Dizoglio v. Brown, 9 Vet. App. 163 (1996); West v. Brown, 7 Vet. App. 70, 76 (1994). Further, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1993). This does not mean that he cannot establish the alleged in-service event occurred; it only means that other "credible support evidence" from some source is necessary. See Cohen. The Joint Services Records Research Center (JSRRC) was unable to verify the Veteran's alleged stressor of seeing a fellow seaman sustain a hand injury aboard the USS AMERICA in 1968, according to its August and October 2008 responses to the RO's inquiries. In October 2008, the JSRRC noted that the USS AMERICA departed for a Western Pacific deployment in April 1968. Other records show that, during the Vietnam War, the aircraft carrier was deployed from April to December 1968. The Veteran's service records indicate that he served aboard the USS AMERICA from September 1967 to August 1969 and was an aviation boatswain's mate. According to Administrative Remarks in his personnel file, in October 1968, the Veteran served aboard the ship in Southeast Asia while attached to Task Force Seventy-Seven in support of military operations in Vietnam. Thus, it is reasonable to conclude that the Veteran was exposed to hostile activity. Service treatment records reveal that, when examined for enlistment into active service in October 1961, a psychiatric abnormality was not noted and the Veteran was found qualified for active service. A psychiatric abnormality was not noted when he was examined for reenlistment in August 1967. A March 1969 clinical record indicates that the Veteran was referred for nervousness. He was noted to have many marital problems but his main concern was his irritability and argumentativeness since September 1968. The Veteran was oriented but had "mild depression." On evaluation, much "free-floating anxiety" was noted with no evidence of depression, suicidal depression, or psychosis. The assessment was chronic anxiety. When examined for separation in August 1969, a psychiatric abnormality was not noted. On Reports of Medical History completed in February 1984 and July 1987, in conjunction with his Reserve service, the Veteran denied having frequent trouble sleeping, depression, or excessive worry, and nervous trouble of any sort and a psychiatric abnormality was not noted on examination. Post service, the record includes private medical records, dated in 1988 and 1997, and VA medical records, dated from 2002 to 2006. The VA records indicate that the Veteran was variously diagnosed with, and treated for, chronic PTSD, depression, and a mood disorder. In December 2002, depression was noted and, in May 2003, his mood disorder with depressive features was considered due to his general medical condition. However, during 2005 and 2006, the Veteran's mood disorder was attributed to a cerebrovascular accident (CVA). In November 2006, treatment for chronic PTSD due to service in Vietnam was reported. In December 2010, the Veteran underwent VA psychiatric examination. According to the examination report, the examiner reviewed the Veteran's medical records and performed a clinical evaluation. The Veteran complained of having depression for many years, with diminished energy and self esteem, guilt, panic attacks, concentration problems, and sleep difficulty. He gave a history of being physically and emotionally abused by his father. It was noted that that the Veteran's combat experience included Vietnam: "8 months (April - Dec, 1968)." The Veteran reported having sustained an accidental lacerated injury on the back of his head from a blade for which he received stitches. The Veteran's alleged stressful experience involved "[c]ombat experience" in Vietnam from April to December 1968. He explained that, from his ship, he witnessed a lot of planes in action getting loaded with bombs and returning to be reloaded. The examiner also noted that the Veteran sustained an undocumented lacerated accidental blade injury to the back of the head. Upon clinical evaluation, the Axis I diagnoses included PTSD, depression, and panic symtoms. The VA examiner opined that the Veteran's claimed stressor was related to his fear of hostile or terrorist activity, the confirmed stressor was adequate to support a diagnosis of PTSD, and the Veteran's symtoms were related to the claimed stressor. In a January 2012 Addendum, the recent VA examiner responded to the RO's request to clarify the evidence in the record that corroborated the Veteran's claimed stressor and its link to PTSD. According to the VA examiner, the Veteran reported witnessing frequent plane landings and take offs from his ship. These planes were getting loaded with bombs. For the Veteran, "every moment was scary" and "anything could happen" with so much going on, off and on ship. He could hear explosions and gunfire day and night from a distance. His was a big ship and, therefore, had to be off shore but, nonetheless, it was in a combat zone. Further, the VA examiner stated that, based on the Veteran's version, he was not safe offshore; it was a life-threatening experience day in and day out; and the Veteran's description clearly meets A1 and 2 criteria for PTSD, per DSM-IV. The Veteran's PTSD was a well established diagnosis as he received VA outpatient psychiatric care. According to the VA examiner, "[e]tiologically, [the Veteran's] PTSD is at least as likely as not related to his [Vietnam] tour, and his clinical symtoms - from -RE-EXPERIENCING cluster that includes nightmares, dreams and flashbacks - are consistent with his exposure to the traumatic stress in [Vietnam]." As the medical evidence of record shows, the Veteran was diagnosed with PTSD by a VA examiner December 2010, based upon the Veteran's account of his fear of hostile or terrorist activity while serving aboard the aircraft carrier USS AMERICA from April to December 1968 when it was deployed in the Vietnam War. His service records verify that he was assigned to the ship at that time. The Veteran's post service medical records show that he was also diagnosed with a mood disorder and depression. The December 2010 VA examiner opined that it was at least as likely as not that the Veteran's PTSD was related to his Vietnam tour and his clinical symtoms were consistent with his exposure to the traumatic stress in Vietnam. There is no medical evidence to dispute the VA examiner's opinion. Thus, the Board is persuaded that the evidence supports the Veteran's claim and service connection may be granted. As such, affording the Veteran all benefit of the doubt, service connection for PTSD is warranted and the Veteran's claim will be granted. 38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. § 3.304. ORDER Service connection for PTSD is granted. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs