Citation Nr: 1330063 Decision Date: 09/19/13 Archive Date: 09/25/13 DOCKET NO. 12-17 760A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder. WITNESSES AT HEARING ON APPEAL Veteran and his son ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served on active duty from July 1944 to November 1945. This case comes to the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal has been advanced on the Board's docket. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2013). FINDINGS OF FACT The evidence of record establishes that the Veteran has PTSD, which has been attributed to his military service. CONCLUSION OF LAW PTSD was incurred during military service. 38 U.S.C.A. §§ 1110, 1154, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Without deciding whether notice and development requirements have been satisfied in the present case, the Board is not precluded from adjudicating the issue on appeal herein. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This is so because the Board is taking action favorable to the Veteran by granting the issue at hand. As such, this decision poses no risk of prejudice to the Veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); see also Pelegrini v. Principi, 17 Vet. App. 412 (2004); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). In addition, 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). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2013); a link, established by medical evidence, between current symptoms and an inservice stressor; and credible supporting evidence that the claimed inservice stressor occurred. 38 C.F.R. § 3.304(f). Where it is determined, through recognized military citations or other supportive evidence, that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the Veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the Veteran's testimony is found to be "satisfactory," e.g., credible, and "consistent with the circumstances, conditions, or hardships of [combat] service." Zarycki v. Brown, 6 Vet. App. 91, 98 (1993); see also 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304. Furthermore, if the claimant did not engage in combat with the enemy or if the claimed stressors are not related to combat, then the claimant's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). 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. "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) (2013). Historically, the Veteran served on active duty during the World War II Era, including service in Rhineland, Ardennes, and in Central Europe. The Veteran's report of separation, Form DD 214, listed his in-service specialty as rifleman and noted that he was awarded several awards and medals, including a Purple Heart and a Combat Infantryman Badge. The Veteran is service connected for bilateral hearing loss and tinnitus, which were granted on the basis of military noise exposure associated with combat. The Board concedes that this Veteran is a combat Veteran. The Veteran's service treatment records, including his November 1945 service separation examination report, are negative for complaints, treatment or diagnoses of any psychiatric disorder. In fact, the separation examination report specifically noted, "Psychiatric diagnosis: NORMAL." However, again, 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). In support of his claim, the Veteran has alleged multiple in-service stressors. At the time of his March 2011 VA examination, the Veteran reported having to be "on [his] toes 24 hours a day," that he "was involved in multiple battles," and that multiple people froze to death. He reported that it was traumatic in that he killed people and had friends killed. He reported seeing a mortar shell decapitate a fellow soldier. He also reported seeing someone "squashed by a tank" and that he was involved in capturing Germans. At the time of his June 2013 Board videoconference hearing, the Veteran also reported being hospitalized and that people in cots near him died. He also reported being in situations during which he experienced incoming mortar fire. These reported stressors are certainly related to the Veteran's fear of hostile military activity. Under these circumstances, and considering the Veteran's combat status, while resolving all reasonable doubt in favor of the Veteran, the Board finds that the evidence includes credible supporting evidence that the Veteran was exposed to various combat related stressors while in Germany and Eastern Europe during World War II. Accordingly, the Board finds that the Veteran's claimed in-service stressors are verified. Post service records also suggest a current diagnosis of PTSD. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (holding that a current disability exists if the diagnosed disability is present at the time the claim is filed or during the pendency of the claim, even if the disability resolves prior to adjudication). While the Veteran confirmed at his hearing and at the time of his July 2010 claim that he does not receive ongoing treatment for PTSD, he did report current stress problems. At the March 2011 VA examination, the Veteran reported that he is occasionally hypervigilant and that he has occasional hyper-startle behavior. He reported a history of alcohol abuse and anger outbursts. The examiner noted mild problems with short-term memory, troubling combat-recall, and episodic thoughts of survivor guilt. Social isolation was also noted, as well as recurrent anger, irritability and anxiety. Episodic sleep disturbance with restlessness was also noted by the VA examiner. The Veteran reported at his June 2013 hearing that while sleeping he would start to fight and that he would actually physically strike his wife in his sleep. He recalled her bruising and that eventually they began sleeping in separate beds. He also reported vivid dreams of being stabbed with a bayonet in the abdomen and he would wake up screaming. The Veteran reported to the VA examiner that these symptoms started in approximately 1947 and that while they have decreased in severity over time, he "still react[s] to triggers." The Veteran reported to the examiner that he did have a history of problems with aggressiveness and anger control, which led to difficult interpersonal functioning such as in his marriage and family life. The Veteran's son provided testimony at the June 2013 hearing, which was consistent with this report. The examiner noted that, at the time of the examination, the Veteran presented with a euthymic mood with congruent affect and with a report of recurrent anger and anxiety, mostly while driving. The VA examiner concluded that the Veteran met the stressor criteria for a PTSD diagnosis and that he reported symptoms of exposure to combat-related traumatic events and occasionally re-experiencing trauma. He reported that the symptoms were ongoing since shortly after his traumatic stress exposure to combat in World War II, although there has been some slow remission of symptoms. For this reason, the examiner noted that there is not an indication of symptoms currently of PTSD having an "impact on his life," but that "it is probable he has a history" of PTSD. At the time of the hearing, the Veteran also submitted a handwritten treatment note from his private physician, dated in May 2012. This report discusses the Veteran's PTSD, with notation of the Veteran's time in Germany, as well as his currently "terrible nightmares." This report also confirmed the violence the Veteran experienced while sleeping, which led to him harming his wife. In summary, both the VA examiner and private physician have noted symptoms of and a noted diagnosis of PTSD, albeit progressing toward remission. The VA examiner's discussion was given in accordance with the DSM-IV criteria. Given the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran has PTSD that is related to his traumatic experience in service. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that the evidence supports a grant of entitlement to service connection for PTSD. 38 U.S.C.A. § 5107(b). ORDER Service connection for PTSD is granted. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs