Citation Nr: 1332659 Decision Date: 10/21/13 Archive Date: 10/24/13 DOCKET NO. 13-11 033 ) 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 disorder, to include posttraumatic stress disorder (PTSD) and anxiety disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD W. R. Stephens, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1968 to August 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied entitlement to service connection for PTSD, including service in the Republic of Vietnam. The United States Court of Appeals for Veterans Claims has held that VA must consider alternative psychiatric disorders within the scope of an initial claim for service connection for a specific psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). As a result, the Board has considered the Veteran's claim as entitlement to service connection for an acquired psychiatric disorder, including PTSD and anxiety disorder. FINDING OF FACT Resolving doubt in the Veteran's favor, the evidence demonstrates that he has currently diagnosed acquired psychiatric disabilities, to include PTSD and anxiety disorder, which have been related by a VA mental health professional to his in-service traumas and are consistent with the circumstances of his service in Vietnam. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, have been met. 38 U.S.C.A. §§ 1110, 1154, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Board is granting in full the benefit sought on appeal. As a result, any error committed with respect to either the duty to notify or the duty to assist was harmless. II. Service Connection for an Acquired Psychiatric Disorder Generally, service connection may be granted for a disability or injury incurred in or aggravated by active service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD has slightly different requirements than general service connection. To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease of 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). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2013). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Establishment of 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). See also Cohen v. Brown, 10 Vet. App. 128 (1997); 38 C.F.R. § 4.125(a). 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. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b). If there is no combat experience, or if there is a determination that the Veteran engaged in combat but the claimed stressor is not related to such combat, there must be independent evidence to corroborate the Veteran's statement as to the occurrence of the claimed stressor. Doran v. Brown, 9 Vet. App. 163, 166 (1996). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Cohen, 10 Vet. App. at 142; Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996). That notwithstanding, effective July 13, 2010, VA amended the regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. Specifically, 38 C.F.R. §3.304(f)(3) was amended to redesignate former paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads: 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. 38 C.F.R. §3.304(f)(3). Here, the Veteran has been diagnosed with both anxiety disorder and PTSD. The Veteran was diagnosed with anxiety disorder at his November 2011 VA examination. At a VA psychiatry examination in February 2012, the Veteran was diagnosed with mild PTSD. The Veteran's claimed stressor was his time spent in a combat zone in Vietnam. This is consistent with his service in Vietnam, as indicated by the medals noted in his DD Form 214, as well as his military occupational specialty (MOS) of light truck driver. The Veteran alleges that he was in this combat zone for one year and was engaged in fighting. The Veteran also asserts that he was stationed near a large ammunition dump, and was subject to consistent enemy fire. As a result, the Veteran now experiences "hyperirritability and hypervigilance with an exaggerated startle response." In addition the Veteran sleeps with a weapon by his bed and "awakens frequently at night to 'patrol the perimeter' to check his house for perimeters." The Board finds that the diagnoses of both PTSD and anxiety disorder satisfy requirement (1) for service connection. The Board also notes that the November 2011 diagnosis of anxiety disorder and resulting opinion is not inconsistent with the later February 2012 diagnosis of PTSD. With regard to requirement (2) for both general and PTSD service connection, the Board notes that service treatment records lack any documentation of treatment for psychiatric conditions or any relevant symptoms. However, the Board finds the Veteran's lay testimony as to his experience to be credible and consistent with his service medals and MOS. In line with the amendment to 38 C.F.R. §3.304(f)(3), the Board finds that the Veteran's lay evidence regarding his time spent in the combat zone and his exposure to consistent enemy fire to be fully adequate to qualify as a stressor relating to a "fear of hostile military or terrorist activity." As a result, requirement (2) for both general service connection and PTSD is met. Regarding requirement (3), the 'nexus' requirement, the Board finds that it is satisfied. The November 2011 VA examination diagnosing the Veteran with anxiety disorder indicates that the Veteran was exposed to a traumatic event that would qualify as a stressor. From the examination, it appears that the examiner based the negative PTSD opinion solely on the lack of a PTSD diagnosis. This is not inconsistent with the medical finding in February 2012, due to a later diagnosis of PTSD, that the Veteran's PTSD is likely due to a combination of service in Vietnam and his own occupation. Additionally, the November 2011 examination seems to infer, while not directly addressing, that the Veteran's anxiety disorder is related to his experience in service. The opinion is only negative with respect to PTSD, apparently because PTSD was not diagnosed. The opinion was not negative with respect to the nexus between the Veteran's anxiety disorder and his service. Coupled with the lay testimony of the Veteran and the Veteran's wife, the Board finds that the Veteran's acquired psychiatric disorder is the result of his service. As a result, the Board finds the nexus requirement to be satisfied. Resolving all doubt in the Veteran's favor, the Board finds that the criteria for service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, have been met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, is granted. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs