Citation Nr: 1327810 Decision Date: 08/30/13 Archive Date: 09/05/13 DOCKET NO. 11-08 799A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Andrew Larson, Associate Counsel INTRODUCTION The Veteran had active service from July 2000 to March 2005. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a November 2009 rating decision of the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which denied service connection for PTSD. The Board has characterized the issue on appeal in order to comport with Clemons v. Shinseki, 23 Vet. App. 1 (2009), which held that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. The Board has reviewed the Veteran's electronic record ("Virtual VA") prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD. 2. The Veteran experienced several in-service stressors while on deployment in Iraq from 2003 to 2004. 3. The Veteran's PTSD relates back to his time in service in Iraq. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110 , 5107(b) (West 2002); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 ("VCAA"), the 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 and 3.326(a). In this decision, the Board is granting service connection for PTSD, and this represents a complete grant of the benefit sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. Merits of the Claim The Veteran asserts that he has PTSD that is the result of stressful experiences that he was subjected to during his military service in Iraq. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110 ; 38 C.F.R. § 3.303(a) . Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) . A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)), (2) credible supporting evidence that the claimed in-service stressors actually occurred, and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. See 38 C.F.R. §3.304(f) . Additionally, the Board notes that, effective July 13, 2010, the regulations governing service connection for PTSD were amended to relax the adjudicative evidentiary requirements for determining what happened in service, specifically for establishing the occurrence of an in-service stressor for non-combat Veterans. The revised regulations pertaining to PTSD no longer require the verification of an in-service stressor if the Veteran was in a situation involving "fear of hostile military or terrorist activity." Lay testimony alone can be used to establish the occurrence of an in-service stressor in these situations. The new regulatory provision requires that: (1) A VA psychiatrist or psychologist, or contract equivalent, confirm that the claimed stressor is adequate to support a diagnosis of PTSD; (2) the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) the Veteran's symptoms are related to the claimed stressor. 38 C.F.R. § 3.304(f). 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. 38 C.F.R. § 3.304(f)(3). Here, the Veteran is claiming he experienced stressors while serving in Mosul, Iraq. These stressors include seeing a fellow soldier getting struck by a mortar, handling a blown-off limb while cleaning up after a firefight, and undertaking enemy fire while on the base. The Veteran's DD 214 notes that he served in Kuwait and Iraq from February 2003 to February 2004. The Veteran was diagnosed with PTSD on two separate occasions. The first came in a September 2006 VA mental health consultation performed by a clinical psychologist. In the psychologist's assessment of PTSD, he lists the Veteran's stressful experiences in Iraq under "Traumatic Events," including witnessing a solider taking a mortar round in the head, witnessing the killing of civilians, finding a body part while cleaning up, and being fired upon. The psychologist notes "symptoms of arousal not present before trauma." The second PTSD diagnosis came in an August 2007 VA examination undertaken by a psychiatrist. The psychiatrist noted the Veteran's one year combat tour in Iraq and the problems he experienced upon his return in his report, including "intrusive memories, nightmares, flashbacks, hypervigilance, hyperstartle reflex, emotional numbing, anger, isolation, and avoidance behaviors." The Veteran's lay statements alone of experiences he had in Iraq are sufficient by themselves to establish in-service stressors under the "fear of hostile military or terrorist activity" provision of § 3.304(f). The September 2006 consultation noted the Veteran's claimed stressors as "traumatic events" in its analysis of PTSD, while the August 2007 examination cited to the Veteran's one year of combat deployment. The Veteran's claimed stressors are consistent with experiences of those in the Gulf War Era and are specifically covered by § 3.304(f)(3), as he claims he witnessed a death by mortar fire, witnessed civilian deaths, and undertook enemy fire while on base. The Board finds no reason to question the competency or credibility of the Veteran. See Smith v. Derwinski, 1 Vet. App. 235, 237 (1991) (determining the credibility of evidence is a function for the Board); Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-193 (1992) (VA decision makers have the responsibility to assess the credibility of evidence and determine the degree of weight to give the evidence). The two diagnoses of PTSD the Veteran received are enough to establish that he currently suffers from PTSD and to provide a link between the Veteran's service and his current disability. Both examinations made a diagnosis of PTSD for the Veteran. The September 2006 consultation noted the Veteran's claimed stressors as "traumatic events" in its analysis of PTSD, while the August 2007 examination cited to the Veteran's one year of combat deployment in its analysis. Because all of the elements have been met, the Board concludes that the evidence supports the grant of service connection for PTSD. In reaching this conclusion, the Board considered the January 2011 VA examiner's opinion, which was based upon a review of the claims folder as the Veteran was not available for examination. The examiner could not opine whether the Veteran's current PTSD was due to fear experience in Iraq without resorting to mere speculation. The examiner made this statement without explaining in detail why this was the case. The Board places greater weight on the two prior diagnoses, as the examiners examined the Veteran, provided detailed the reasoning behind their conclusions, and were sufficient for establishment of service connection by themselves. ORDER Service connection for PTSD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs