Citation Nr: 1328144 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 10-41 548 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) with depression and anxiety. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1986 to February 1989, and from January 1991 to June 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2009 decision of the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In August 2011, the Veteran testified before the undersigned at a Board hearing via video conference from the RO. It is acknowledged that additional relevant evidence was submitted following the issuance of the March 2011 Statement of the Case and this evidence was not reviewed by the RO. Nevertheless, given the favorable decision by the Board, the Veteran has not been prejudiced. FINDING OF FACT The Veteran's psychiatric disorders, to include PTSD, anxiety and depression, are attributable to service. CONCLUSION OF LAW PTSD (with depression and anxiety) was incurred in active wartime service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with §4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. See 38 C.F.R. § 3.304(f). The following provisions apply to claims for service connection of PTSD diagnosed during service or based on the specified type of claimed stressor: (1) 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. (2) 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. (3) If a stressor claimed by the 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. (4) If the evidence establishes that the Veteran was a prisoner-of-war under the provisions of §3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, 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. (5) If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. VA will not deny a PTSD claim that is based on in-service personal assault without first advising the claimant that evidence from sources other than the veteran's service records or evidence of behavior changes may constitute credible supporting evidence of the stressor and allowing him or her the opportunity to furnish this type of evidence or advise VA of potential sources of such evidence. VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. 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. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). In this case, the Veteran served in the Military Police at a Prisoner of War Camp while stationed in Saudi Arabia. He described stressors as including being under enemy scud attack, being in the area of a riot and seeing a fellow servicemember severely injured, and believing he met someone involved in the later 9/11 attack on the United States. In March 2010, the United States Army and Joint Services Record Research Center (CURR) verified that there were numerous scud missile attacks against the Veteran's unit. Thus, his stressor of being under attack by the enemy was verified. In 2008, the Veteran entered VA treatment for PTSD. In June 2008, the Veteran was examined at the VA behavior health clinic and it was noted that he had an anxiety disorder, met the criteria for PTSD and for a current depressive episode. An August 2008 PTSD consultation included a full and complete mental status examination which addressed the four applicable criteria for PTSD, which were all met by the Veteran. The Veteran recounted his service stressors during the course of treatment. The examiner concluded that the Veteran had an adjustment disorder with mixed anxiety and depression, but also concluded that he had PTSD. Thereafter, the Veteran continued to participate in VA psychotherapy treatment for PTSD, with continued recognition of the PTSD diagnosis. The Veteran was afforded a VA examination in May 2010, but this examiner concluded that the Veteran did not have PTSD as the second criterion, persistent re-experiencing of the traumatic event, was not shown. Rather, he concluded that the Veteran had an anxiety disorder. However, the examiner opined that it was not caused by or a result of inservice military stressors. As noted, there is a verified in service stressor. There is also a current diagnosis of PTSD which is accepted as being related to the stressor. However, there is a conflicting opinion that the Veteran does not have PTSD or other psychiatric disability due to service. The Board must weigh the credibility and probative value of the medical opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)); see also Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases for doing so). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Black v. Brown, 10 Vet. App. 279, 284 (1997). In this case, both VA opinions are probative as they were both provided by medical professionals who are experienced with the diagnosis and treatment of psychiatric disabilities, who performed complete examinations including mental status examinations and testing. The Board therefore finds that the medical evidence of record is in relative equipoise as to the matter of whether the Veteran has PTSD which is attributable to service. As noted, there are contradictory opinions, but the Board finds that they are of equally probative value as they were provided by specialists and were based on mostly accurate medical histories. The evidence in this case is so evenly balanced so as to allow application of the benefit-of- the-doubt rule as required by law and VA regulations. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection for an acquired psychiatric disorder to include PTSD, depression and anxiety is warranted. ORDER Service connection for an acquired psychiatric disorder to include PTSD, depression and anxiety is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs