Citation Nr: 1329131 Decision Date: 09/11/13 Archive Date: 09/17/13 DOCKET NO. 00-15 037 ) 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, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Daniel G. Krasnegor, Attorney at Law WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran served on active duty from February 25, 1976 to August 25, 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1999 rating decision of the Nashville, Tennessee, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied the benefit sought on appeal. In April 2001, the Board remanded this claim to obtain any outstanding private treatment records, to obtain any lay statements in support of the Veteran's claim, to verify any alleged stressors, and to obtain a VA compensation examination. The Veteran was subsequently afforded a Decision Review Officer hearing in October 2002. A transcript of that proceeding has been associated with the Veteran's claims file. Following completion of the Board's remand directives, the Veteran's claim was denied in a May 2003 Board decision. Thereafter, the Veteran appealed his claim to the United States Court of Appeals for Veterans Claims (Court). In October 2006, the Court issued a Memorandum Decision, which vacated the Board's May 2003 decision, and remanded the matter back to the Board for additional development. In October 2008, the Board remanded the Veteran's claim to provide him with appropriate notice of VA's duties to notify and assist him with respect to a claim for a personal assault and he was provided with a new VA compensation examination. In November 2009, the Board again denied the Veteran's claim. Again, the Veteran appealed to the Court, which issued a second Memorandum Decision in September 2011 that vacated the November 2009 Board decision and remanded the matter back to the Board for additional development. In March 2012, the Board again remanded the claim in accordance with the Court's Memorandum Decision. The Veteran's Virtual VA electronic record has also been reviewed in conjunction with the appeal and includes additional VA treatment records dated from April 2013. FINDING OF FACT The Veteran has a current psychiatric disability, most recently diagnosed as PTSD with mood disorder, and linked by medical evidence to an in-service personal assault for which there is corroborating evidence. CONCLUSION OF LAW The criteria for service connection for PTSD with mood disorder have been met. 38 U.S.C.A. §§ 1131, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, there is no detriment to the Veteran as a result of any VCAA deficiency in view of the fact that the full benefit sought by the Veteran (service connection for PTSD with mood disorder) is being granted by this decision of the Board. By letter dated in January 2009, the Veteran was furnished notice of the manner of assigning a disability evaluation and an effective date. He will have the opportunity to initiate an appeal from these "downstream" issues if he disagrees with the determinations which will be made by the RO in giving effect to the Board's grant of service connection for PTSD. Analysis The issue before the Board is entitlement to service connection for an acquired psychiatric disability, to include PTSD. The Veteran asserts that he has PTSD as a result of several incidents from service, which were best described by the Veteran in his October 2002 hearing testimony before the RO. At the hearing the Veteran testified that he was kicked down stairs while wearing full gear by his drill sergeant. He also alleged that his drill sergeant removed his gas mask during gas chamber training. He further testified that while going through a chimney during training he told his drill sergeant that he was afraid of heights and requested to complete the drill when he had the nerve to complete the task, and that the drill sergeant denied his request. The Veteran further stated that he fell in the chimney during completion of the drill. Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), 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. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is consistent with the circumstances, conditions, and hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f). During the course of the appeal, the regulations for PTSD were amended to include that 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. 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. See 38 C.F.R. § 3.304(f)(3); 75 Fed. Reg. 39843 - 39852 (July 13, 2010). Initially, the Board notes that there is no evidence in the record that the Veteran served in combat nor is the Veteran claiming that he served in combat or that his PTSD is related to combat. Further, as Board the Veteran did not serve in a location involving "fear of hostile military or terrorist activity," the amended regulations are not for application. Rather, the Veteran's principal claimed stressor is that he was physically assaulted as described above. Thus, as it is not shown that the Veteran engaged in combat, his unsupported assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, his alleged service stressors must be established by official service records or other credible supporting evidence. 38 C.F.R. § 3.304(f); Cohen v. Brown, 10 Vet.App. 128 (1997); Doran v. Brown, 6 Vet.App. 283 (1994). The regulatory requirement for "credible supporting evidence" means that "the veteran's testimony, by itself, cannot, as a matter of law, establish the occurrence of a non-combat stressor." Dizoglio v. Brown, 9 Vet. App. 163 (1996). VA's regulation concerning the evidence necessary to establish the occurrence of a stressor in claims for service connection for PTSD provides the following guidance: If a post-traumatic stress disorder 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 post-traumatic stress disorder 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. 38 C.F.R. § 3.304(f)(5). The Veteran's service treatment records are silent with respect to any psychiatric complaints or diagnoses. A March 1976 service treatment record showed that the Veteran was evaluated for pain in the lower left quadrant, which the Veteran's representative asserts supports his claim of physical assault. An August 1976 service examination prior to discharge showed that the Veteran was evaluated as psychiatrically normal. However, in his contemporaneous Report of Medical History, the Veteran reported frequent trouble sleeping. Service personnel records in June and July 1976 documented the Veteran's problems completing training classes as well issues with going AWOL. Counseling session notes observe that the Veteran reported personal problems at home and that he would be better off if he got out of the Army. In July 1976, the Veteran was recommended for discharge due to academic deficiencies, lack of interest, lack of motivation, improper attitude and failure to respond to numerous counseling sessions. In support of his claim, the Veteran submitted statements from his mother and sister in July 2001. Both statements indicated that the Veteran expressed being stressed out, miserable and wanting out of the Army. Both statements recalled the incident where the Veteran went AWOL and the military police came to pick him up. The sister's statement also confirmed that the Veteran had reported being pushed down stairs. Post-service VA and private treatment records showed an impression of depression and anxiety, but do not offer any sort of etiological opinion. The evidence of record shows that the Veteran was first afforded a VA examination in November 2002. The Veteran was diagnosed with mild depressive disorder of the neurotic type. The physician found, "patient is not considered to be suffering from PTSD or psychotic disorder. There is no identified stressor except his report of being pushed down and humiliated and ill-treated by his superior sergeants during his Army service." In February 2009, another VA opinion was obtained. The psychiatrist found, "the disciplinary problems that he manifested during his time in the service, mainly oppositional tendencies, 'not working or following instructions, constantly absent from classes,' is more indicative of a pattern of maladaptive behavior that is of long duration. It was less likely as not (less than 50/50 probability) that his disciplinary problem was caused by alleged in service personal stressor." However, in the September 2011 Memorandum Decision, the Court found that this opinion was inadequate because the examiner failed to given any sort of rationale for her opinion, but rather simply provided conclusory statements. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (when VA provides a veteran with a medical examination related to a claim for service connection, the examination must be adequate). As such, in March 2013 the Board remanded the case to afford the Veteran an adequate VA examination. The Veteran was afforded another VA examination in July 2012. After examining the Veteran and reviewing the claims file, the examiner found that the Veteran met the criteria for PTSD, although minimally. Significantly, the examiner determined that the Veteran was exposed to a traumatic event that involved actual or threatened death or serious injury as well that the Veteran responded with intense fear, helplessness and horror. The examiner also opined that the Veteran's PTSD was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. The examiner noted that he could not answer whether a personal assault took place as there was no verification of this assault in the record, and the perception and description of this assault was solely obtained from the Veteran and from information provided by him and his family in the record. The examiner rationalized that the Veteran met the symptoms criteria for PTSD by his description, but there was no way that the examiner could determine if the Veteran's perception was verifiable or if his reaction was more related to the intense yet more routine stress of training. The examiner went on to discuss any affects a questionable personality disorder would have on the Veteran's PTSD symptoms. The examiner continued that the Veteran met the criteria for PTSD, but was more troubled by pain problems and a long-term belief of being mistreated and the victim of prejudice in service with resentment over the years defining at least in substantive measure his perception of distressing memory. The Veteran was afforded another VA examination in September 2012 with a VA psychiatrist. This examiner determined that the Veteran did not fully meet the criteria for PTSD and otherwise did not rise to the level of severity of major depressive disorder or anxiety disorder. However, importantly, the examiner found that the abuse of by the Veteran's sergeant during basic training did meet the stressor criteria for PTSD. The examiner determined that the Veteran had exposure to sufficient traumatic events, especially the fall down the stairs. However, while the Veteran met some of the criteria for PTSD, he did not meet all the criteria according to this examiner as there was no indication of persistent avoidance of stimuli or symptoms of increased arousal. Nevertheless, the examiner diagnosed the Veteran with a mood disorder and found that it was at least as likely as not due to or a result of an in-service event. The Board now turns to whether the Veteran has a diagnosis of PTSD based on his in-service stressor of personal assault. Although there is no clear evidence to corroborate the Veteran's assertions, the Board observes that during the course of the appeal and when seeking medical treatment, the Veteran has been consistent in all of his statements that he was pushed down a flight of stairs by a sergeant during basic training. The Board has no clear reason to doubt his credibility. Moreover, statements from the Veteran's sister and mother as well as service personnel records, which document a lack of interest and wanting to leave the Army, also indicate behavioral changes that further corroborate the Veteran's assertions. The Board also notes the assertion by the Veteran's representative that the March 1976 treatment record shower left lower quadrant pain is also supporting evidence that a physical assault occurred. The Board also finds it significant that both recent VA examiners found that the Veteran's in-service stressor of falling down the stairs was a sufficient stressor to support a diagnosis of PTSD. As such, when resolving reasonable doubt in favor of the Veteran, the Board finds that there is sufficient circumstantial evidence to corroborate his in-service stressor. Moreover, because there is some question of current diagnosis, with evidence both for a diagnosis of PTSD and evidence against, the Board finds that the evidence is in at least a state of equipoise. Under such circumstances, reasonable doubt on this question should be resolved in favor of the Veteran. Accordingly, the Board determines that the Veteran has a currently diagnosed psychiatric disorder of PTSD based on the reported in-service personal assault stressor and, thus, service connection is warranted. Further, as the September 2012 VA examiner also determined that the Veteran's mood disorder was related to the incident described in service, this disorder should also be included when evaluating the Veteran's service-connected PTSD. In conclusion, based on the analysis above, resolving reasonable doubt in the Veteran's favor, the Board finds that service connection for PTSD with mood disorder is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Board notes that in reaching this conclusion, the evidence is at least in equipoise, and the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for PTSD with mood disorder is granted. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs