Citation Nr: 1328624 Decision Date: 09/09/13 Archive Date: 09/17/13 DOCKET NO. 10-31 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD L. Crohe, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Houston Regional Office (RO) of the Department of Veterans Affairs (VA) that denied service connection for PTSD. In May 2010 the Veteran and his wife testified at a hearing before a Decision Review Officer (DRO); a transcript of that hearing is of record. The Veteran was scheduled to appear at a Board hearing in July 2013. He did not appear at the hearing. The Veteran's hearing request is considered withdrawn, and the Board may proceed to adjudicate the case. 38 C.F.R. § 20.704(e). (This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).) FINDING OF FACT The Veteran currently has PTSD based on combat stressors consistent with the circumstances of his service. CONCLUSION OF LAW The Veteran has PTSD that is the result of disease or injury incurred during active military service. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. 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). 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even in cases where the disability resolves prior to the Secretary's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321-323 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 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. Service connection for PTSD requires medical evidence diagnosing the condition; 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. If the evidence establishes that a 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, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). The Board must make a specific finding as to whether a veteran actually engaged in combat when that question is at issue. Zarycki v. Brown, 6 Vet. App. 91 (1993). The Court has held that receiving enemy fire can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). A determination that a veteran engaged in combat with the enemy may be supported by any evidence that is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99. Evidence submitted to support a claim that a veteran engaged in combat for purposes of a claim of service connection for PTSD may include a veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). If a stressor claimed by a veteran is related to 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 a 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 a veteran's service, a 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 a 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 a 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The Veteran contends that he had PTSD related to traumatic in-service experiences. More specifically, he indicated that he witnessed several service members killed or wounded and saw dismembered bodies. He was wounded twice and sustained injuries to his hands from a mortar explosion. He gave and received fire from assault weapons, mortars, and rocket propelled grenades. See April to October 2009 Vet Center treatment records, August 2009 VA examination report, and October 2009 correspondence from Dr. F.I. A VA examiner in August 2009 found that the Veteran met the stressor criteria for PTSD, but did not provide an Axis I diagnosis of PTSD. Multiple treatment providers nevertheless found otherwise. See October 2009 correspondence from Dr. F.I., May 2013 correspondence from Dr. A.A.F., May to July 2012 treatment records from Valley Baptist Medical Center, and June to July 2011 treatment records from South Texas Health System. Additionally, VA treatment records included a September 2009 psychiatry note with an Axis I diagnosis of a prior history of PTSD and a positive PTSD screening in June 2011. The VA examiner reported that the Veteran met the DSM-IV stressor criteria for PTSD and had recurrent and intrusive recollections of the event, including images, thoughts, or perceptions. The examiner did not address any other PTSD criteria and indicated that there was no Axis I diagnosis. However, in October 2009 correspondence, Dr. F.I., a psychiatrist, stated the Veteran met the diagnostic criteria for PTSD according to the DSM-IV as follows: The Veteran's traumatic event included actual death, serious injury; threat to the physical integrity of self and others; and he responded with intense fear, helplessness, and horror. He had recurrent recollection of the event. Specifically, he had flashbacks of his friends who died in Korea. He felt as if the traumatic events were recurring and had distressing dreams and nightmares of the event. He made efforts to avoid association with the trauma; had markedly diminished participation in activities; felt detached from others; and had a restricted range of affect. He had difficulty falling or staying asleep, difficulty in concentration, irritability or outbursts of anger, and hypervigilance. Dr. F.I. reported that the duration of the disturbance (symptoms in Criteria B, C, and D) was more than one month and the disturbance caused distress or impairment in social, occupational, or other areas of functioning. After mental status examinations, Dr. F.I. diagnosed the Veteran with PTSD and senile dementia of the Alzheimer's type. The October 2009 correspondence by a private psychiatrist, as well as other private treatment record, reflects a current diagnosis of PTSD during the pendency of the appeal. McClain v. Nicholson, 21 Vet. App. 319 (2007). Therefore, the evidence is in at least equipoise on the question of whether the Veteran meets the criteria for a current diagnosis. Resolving reasonable doubt in his favor, the Board finds that he has a current diagnosis of PTSD. Additionally, the PTSD diagnosis has been attributed to in-service combat stressors. In October 2009 correspondence, Dr. F.I. reported (under the heading of PTSD), that the Veteran was exposed to extensive combat and witnessed a lot of casualties during his tour in Korea. As previously mentioned, Dr. F.I. found that under criterion A, the Veteran's traumatic event included actual death, serious injury; threat to the physical integrity of self and others; he responded with intense fear, helplessness, and horror. From this history and mental examination, the Veteran was diagnosed with PTSD. This record satisfies the second requirement for service connection for PTSD--a link established by medical evidence between the diagnosis of PTSD and the claimed in-service stressors. In regards to the reported in-service stressors, the Veteran is competent to report participation in combat. Furthermore, there is no evidence to explicitly contradict his reported stressors and they are generally consistent with the evidence of record and the circumstances of his service. Service personnel records reveal Military Occupational Specialty (MOS) as an Intelligence Man. He served in the United States Marine Corps in Korea during the Korean War and was in receipt of numerous awards and medals, to include the Purple Heart Medal, which is indicative of actual participation in combat situations. Additionally, his service record shows that he engaged in operations against enemy forces in Korea. Service treatment records showed that he was wounded in action against an organized enemy in Korea in November 1952 and February 1953. In November 1952, he was wounded in the lower lip and right hand. In February 1953, he had a missile fragment wound in the right lower leg. The Veteran has consistently reported that he witnessed numerous casualties and wounded soldiers. He also reported that he was wounded. Thus, his reports as to participation in combat are deemed credible and are supported by the record. Given the consistency of the Veteran's reports; the Veteran's MOS and Purple Heart Medal, and stressors that were consistent with combat during his Korean tour, resolution of reasonable doubt in the Veteran's favor warrants a finding that he engaged in combat. See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-56. As the Veteran engaged in combat and has been diagnosed with PTSD based on his combat stressors, the criteria for service connection for PTSD are met. 38 C.F.R. § 3.304(f)(1). ORDER Service connection for PTSD is granted. ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs