Citation Nr: 1329845 Decision Date: 09/18/13 Archive Date: 09/25/13 DOCKET NO. 12-04 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD) and a depressive disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Sarah Plotnick, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. He served in Vietnam from February 1967 to February 1968. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The issue has been recharacterized as reflected on the cover page given the nature of the Veteran's claim and the medical evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). The record includes a statement regarding the Veteran's previously denied claim of service connection for bilateral hearing loss. See June 2010 VA Form 21-4138. This evidence has not been considered by the agency of original jurisdiction (AOJ), and it is therefore referred to the AOJ for appropriate development. FINDINGS OF FACT 1. The Veteran's reports of experiencing rocket and mortar attacks are consistent with the places and circumstances of his Vietnam service. 2. The Veteran has been diagnosed with a psychiatric disability, to include PTSD and a depressive disorder, which is linked to his active service in Vietnam. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disability, to include PTSD and a depressive disorder, have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f), and 4.125 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION In light of the fully favorable determination in this case, no further discussion of compliance with VA's duty to notify and assist is necessary. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303. The Veteran claims that he has PTSD that is related to his service in Vietnam. Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2012); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Generally, to establish service connection for PTSD diagnosed after service, there must be credible supporting evidence that an in-service stressor occurred. See 38 C.F.R. § 3.304(f). However, a veteran need not substantiate his actual presence during the stressor event; the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. Pentecost v. Principi, 16 Vet. App. 124, 128 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). When all the evidence is assembled, 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 a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has stated that his PTSD was caused by in-service stressors during his active duty in Vietnam. Specifically, he has alleged that his base at Phuoc Vinh was exposed to mortar and rocket attacks in July 1967. He also has claimed that he was stationed at Quan Loi between August 1967 and February 1968, where he observed mortar attacks during the Tet Offensive. See July 2009 VA Form 21-0781. The Board finds that at least one of the Veteran's claimed stressors is supported by credible evidence. Service personnel records (SPRs) indicate that the Veteran served in the Republic of Vietnam from February 1967 to February 1968. He was assigned to the 1st Battalion, 5th Artillery, 1st Infantry Division of the U.S. Army. His MOS is listed as clerk typist. SPRs confirm that the Veteran participated in the Vietnam Counteroffensive Campaign Phases II and III, and the Tet Offensive Campaign. He has not contended that he participated in combat in service, and has not received any decorations or medals indicating involvement in combat. Competent evidence of record shows that the Veteran's battalion was stationed at Phuoc Vinh throughout 1967. Military records indicate that on July 27, 1967, the base camp at Phuoc Vinh was attacked by mortar and rocket fire, which resulted in 12 deaths and 68 injuries. Counterinsurgency Lessons Learned No. 66, 11 (November 10, 1967). This record corroborates the Veteran's contention that enemy rocket and mortar attacks occurred during the time he was stationed at Phuoc Vinh. See Pentecost, 16 Vet. App. at 128. Further, the Veteran's reported stressors are consistent with his service, and there is no clear and convincing evidence indicating that PTSD is due to a non-service related event. Therefore, the Board concedes that at least one of the Veteran's claimed in-service stressors occurred. The record contains conflicting medical opinions as to whether the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. It is the responsibility of the Board to assess the credibility and weight given to the evidence. See Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). The medical evidence against the Veteran's claim for service connection consists of an October 2009 examination report by a VA psychologist. The VA examiner reviewed the Veteran's medical records and claims file. He found that the Veteran displayed a marked diminished interest in significant activities and experienced feelings of detachment or estrangement from others. The examiner diagnosed antisocial and borderline personality traits on Axis II. The examiner concluded that the Veteran did not meet the DSM-IV criteria for a PTSD diagnosis. The psychologist's reported rationale was that: The Veteran endorsed some PTSD and depressive symptoms; however, his clinical presentation is not consistent with the presence of either diagnosis. There is not clinically significant distress that is attributable to his experience in combat. Although he recounted stories of mortar fire and the deaths of his friends, he was not a direct witness to such events and does not appear to be experiencing a significant, distressful recurrence of such events. It is important to note that the Veteran does exhibit maladaptive personality traits indicative of a disorder of character, as manifested by longstanding history of inappropriate displays of anger; volatile interpersonal relationships; illegal behaviors that include stealing and drug dealing; impulsive behaviors including substance abuse and sexual promiscuity; paranoia and distrust and lack of responsibility or remorse for his actions. These characteristics better explain any perceived distress on the part of the Veteran than an Axis I Mental Disorder. In the Veteran's favor is a July 2009 report by a private psychologist that diagnosed the Veteran with PTSD and a depressive disorder. Reading the psychologist's report as a whole shows that these diagnoses were based, at least in part, on the Veteran's report of experiencing mortar and rocket attacks while he was in Vietnam, a stressor which is corroborated. The Board finds the psychologist's diagnoses of PTSD and depression as a result of the Veteran's service experiences of mortar and rocket attacks to be probative. In this regard, the diagnoses of PTSD and depression were made following a 120-minute interview and assessment. The interview included a complete history of the Veteran's traumatic experiences and associated symptoms. The diagnosis of PTSD was made using the criteria of DSM-IV. Additionally, the diagnoses were based on psychological assessments results, including a traumatic stress test. In light of the above, the Board finds the July 2009 psychologist's report highly probative and supportive of the claim of service connection for a psychiatric disorder, including depression and PTSD. The Board finds that the July 2009 private report is more probative than the October 2009 VA examination report. In this regard, the VA psychologist tends to base his opinion, at least in part, on an inaccurate factual premise. In this regard, the examiner stated that "although the Veteran recounted stories of mortar and fire and the deaths of his friends, he was not a direct witness to such events . . ." Throughout the appeal, the Veteran has consistently reported that he was under rocket and mortar attacks while in Vietnam, and such has been corroborated by his service personnel records and reports concerning the history of the Veteran's base in Vietnam. This is an event witnessed and experienced by the Veteran. In light of the foregoing, the Board finds that the preponderance of the evidence supports the Veteran's claim of service connection for PTSD and depression. In this regard, the Board finds that the Veteran has a confirmed diagnosis of PTSD and depression, a confirmed stressor/service event and competent evidence linking his current PTSD and depression to corroborated service stressors. The Board notes that the VA psychologist provided a diagnosis of antisocial and borderline personality traits on Axis II and the private psychologist provided a diagnosis of personality disorder, not otherwise specified, antisocial personality features. The Board notes that personality disorders are not diseases or injuries for VA purposes. Therefore, service connection is prohibited for such disorders. See 38 C.F.R. § 3.303(c). ORDER Service connection for an acquired psychiatric disability, to include PTSD and a depressive disorder, is granted. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs