Citation Nr: 1326445	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  10-48 535	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUE

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


REPRESENTATION

Appellant represented by:	National Association of County Veterans Service Officers


ATTORNEY FOR THE BOARD

M. G. Mazzucchelli, Counsel





INTRODUCTION

The Veteran served on active duty from August 2000 to January 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

The issue has been recharacterized to better reflect the medical evidence and changes in case law.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009). 


FINDING OF FACT

PTSD and an adjustment disorder and depression were incurred in active service.  


CONCLUSION OF LAW

The criteria for service connection for PTSD and an adjustment disorder and depression have been met.  38 U.S.C.A. §§ 1110, 5107(b) (West 2002), 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

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

Service connection will be granted if it is shown that the veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).  

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.

Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor.  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 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.  38 C.F.R. § 3.304(f).

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.  Otherwise, the law requires verification of a claimed stressor.

VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence.  38 U.S.C.A. § 1154(a).

The Veteran seeks service connection for an acquired psychiatric disorder, to include PTSD.  The Veteran attributes his current psychiatric symptoms to being subject to mortar and small arms attacks and improvised explosive device (IED) explosions (e.g., fear of hostile military or terrorist activity) during his tour of duty in the Southwest Asia Theater of Operations (i.e., Iraq) from January 7, 2004, to January 7, 2005.  See Veteran's Statement, Nov. 2007.  

A March 2006 service report of mental status evaluation noted a provisional diagnosis of PTSD.  The examiner noted the Veteran had an inability to tolerate stress due to concern for his family in Georgia, but also noted a need for evaluation for "combat stress related symptoms."

A November 2006 separation Report of Medical Examination noted a diagnosis of PTSD.  The Veteran reported that while on guard duty in Iraq "a UXO exploded in from of my tower about 100 meters out.  Also while in Iraq on three different occasions mortar rounds [were] shot over and beside my tower...during the day, evening and at night while sleeping mortar rounds would drop as close as 100/200 meters to...sleeping area, work area, or dining facility."

A January 2008 VA examination report provided a diagnosis of adjustment disorder with depressed mood, which the examiner attributed to stressors other than military service (i.e., family and legal).  However, in the "Assessment of PTSD" portion of the examination report, the examiner suggested a diagnosis of PTSD related to military service may be warranted.  

In January 2010 the Veteran was enrolled in a VA PTSD residential treatment program where he was treated for PTSD, depression, and anxiety.  An April 2010 VA examiner acknowledged that the Veteran had a psychiatric hospitalization for PTSD from January 4, 2010, to February 18, 2010.  The examiner provided an Axis I diagnosis of "Depressive disorder not otherwise specified with a V code of marital problems."  The examiner stated that the Veteran did not meet the criteria for a diagnosis of PTSD, apparently because there were no reported casualties associated with the mortar attacks cited by the Veteran, but failed to address the psychiatric hospitalization for PTSD.  

In June 2013, the Board obtained a medical opinion from a VHA psychiatrist.  This physician reviewed the claim file and provided an expert opinion addressing the Veteran's case.  He determined that the Veteran met the criteria for a diagnosis of PTSD based on the military stressors of fear of mortar attacks and improvised explosive devices.  He specifically stated that the lack of casualties associated with these attacks did not lessen their ability to create terror and fear in the Veteran; the significant threat of injury or loss of limb was sufficient to constitute a stressor that would support a diagnosis of PTSD.  The reviewing psychiatrist also determined that the Veteran had an adjustment disorder and depression not otherwise specified that had their onset during his period of active duty.

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 January 2008 and April 2010 VA examination reports do not reflect a diagnosis of PTSD.  However, PTSD was noted at separation from service, the Veteran underwent inpatient treatment for PTSD in early 2010, and the VHA psychiatrist opined that the Veteran met the criteria for PTSD.  

In addition, the Board finds that the Veteran's statements regarding his alleged stressors to be credible.  As noted above, the appellant's stressors include mortar and explosive attacks near his unit location in Iraq.  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 PTSD is related to active service.  Again, the VHA psychiatrist specifically attributed the Veteran's PTSD to such inservice stressors.  He also noted that adjustment disorder and depression had their onset in service.

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


ORDER

Service connection for PTSD with adjustment disorder and depression is granted.




____________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs