Citation Nr: 1332995 Decision Date: 10/22/13 Archive Date: 10/24/13 DOCKET NO. 11-14 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include major depressive disorder, anxiety disorder, and posttraumatic traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD H. Hoeft, Counsel INTRODUCTION The Veteran had active service from May 1989 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, that denied service connection for major depressive disorder, with anxiety disorder, and PTSD symptoms (also claimed as PTSD). In February 2012, the Veteran testified at a hearing before the undersigned. A copy of the transcript has been associated with the claims file. Thereafter, in March 2013, the Veteran submitted additional evidence (namely, VA treatment records) in support of his claim; this evidence was not accompanied by a waiver of agency of original jurisdiction. However, as the Board's decision herein constitutes a full grant of the benefit sought, the Veteran will not be prejudiced by a review of such evidence. See 38 C.F.R. §§ 20.800, 20.1304(c) (2013). Please note 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 Competent and credible evidence of record demonstrates that the Veteran has PTSD due to a reported stressor consistent with the circumstances of his military service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. See 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartucciov. Principi, 16 Vet.App. 183 (2002). As the Board is granting service connection for PTSD, no discussion of VA's duty to notify and assist is necessary as the Veteran's claim has been successful and any error was not prejudicial. Service connection - Applicable Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Establishing entitlement to service connection for PTSD consists of medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. 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 American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 359 (1998). Participation in combat, a determination that is to be made on a case-by-case basis, requires that a veteran have personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. See VAOPGCPREC 12-99 (Oct. 18, 1999); Moran v. Principi, 17 Vet. App. 149 (2003). See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If the veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressor and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Dizoglio v. Brown, 9 Vet. App. 163 (1996); Moreau v. Brown, 9 Vet. App. 389 (1996). Furthermore, service department records must support, and not contradict, the Veteran's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The Board notes that, effective July 13, 2010, 38 C.F.R. §3.304(f) was amended to liberalize, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor. See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board. The revisions add to the types of claims VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the veteran's account. Previously, 38 C.F.R. § 3.304(f) only authorized VA to accept statements from Veterans who served in combat, as denoted by combat-related awards or decorations or other evidence sufficient to establish participation in combat, as sufficient to establish the occurrence of the claimed in-service stressor. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). VA later amended 38 C.F.R. § 3.304(f) to also authorize VA to accept the statements of veterans who are former prisoners-of-war , as well as those with an in-service diagnosis of PTSD, as sufficient to establish occurrence of an in-service stressor if such statements are consistent with the places, types, and circumstances of service. The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity." The new regulatory provision requires that a VA psychiatrist or psychologist, or contract equivalent, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD; that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service; and that his symptoms are related to the claimed stressor. The amendment has no impact on PTSD claims that arise out of in-service diagnoses of PTSD, or PTSD stressors experienced during combat, internment as a prisoner-of-war, or as the result of personal assault. Where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the Veteran applies, absent congressional or Secretarial intent to the contrary. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). The amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. VAOPGCPREC 3-2000 (Apr. 10, 2000). In this case, the Board finds that service connection may be granted under the old criteria. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Factual Background and Analysis The Veteran contends that he has PTSD as a result of in-service stressors associated with his service in Southwest Asia during Operation Desert Storm. The claimed stressors are outlined in detail below. At the outset, the Board notes that the Veteran's service treatment records do not reflect complaints, treatment, or diagnoses of PTSD. However, a post-deployment Report of Medical History reflected that the Veteran checked "yes" as to having trouble sleeping, as well as having recurring thoughts about experiences during Desert Shield/Desert Storm. He reported sleeping approximately 2 to 5 hours since returning from his deployment. Likewise, on his August 1992 separation Report of Medical History, the Veteran again endorsed frequent trouble sleeping. Further, in his hearing testimony and in other statements of record, the Veteran endorsed experiencing near-continuous psychiatric symptoms since returning from Southwest Asia, and the Veteran has submitted lay statements from family members and friends supporting this contention. See Statements from Mother and Friends. He also testified that he was treated for psychiatric symptoms, including insomnia and nightmares, as early as 1993-1994 at the Salina, VAMC. The current record shows treatment for PTSD and other psychiatric symptomatology beginning in 2007. With respect to the first element of a claim for service connection for PTSD, that is a current diagnosis in accordance with 38 C.F.R. § 4.125(a), the record contains favorable and unfavorable medical opinion evidence on whether the Veteran has PTSD. The Board must therefore weigh the credibility and probative value of these opinions, and in so doing, the Board may favor one medical opinion over the other. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). The Board must account for the evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In regard to the favorable evidence, the Board notes that the Veteran has been diagnosed with PTSD (Axis I) by his treating private and VA health care providers. In this regard, an April 2007 private Psychotherapy with Medical Evaluation report provided a diagnosis of PTSD (Axis I, 309.81). More recently, VA mental health clinic treatment records dated throughout 2012 and 2013 show diagnoses of PTSD (Primary, Axis I). As for the unfavorable evidence, the Veteran underwent a VA examination in September 2010. The VA examiner provided a diagnosis of major depressive disorder with symptoms that seemed to be exacerbated due to the Veteran's legal problems, incarceration, financial problems, and readjustment from coming out of prison. The VA examiner maintained that the Veteran only had an anxiety disorder with some PTSD symptoms. The Board finds that the favorable and unfavorable medical opinions are competent and credible. Therefore, reasonable doubt must be rendered in favor of the Veteran. Accordingly, the Board finds that the Veteran has a current PTSD diagnosis. Regarding stressors, in his February 2012 hearing testimony, and in other statements of record, the Veteran stated that he worked as a radio repairer ("communications systems for M1s, the Howitzers, Bradleys, and all of the Humvee Commander") during Operation Desert Storm. See Hearing Transcript. During this time, the Veteran reported being in close proximity to exploding mines and bombs; seeing "dead, burnt, and twisted bodies" while traveling the "Miracle Mile" in Kuwait City; and enduring nightly, non-stop bombings for a period of three and a half months. See September 2010 VA PTSD Examination Report. He also stated that, at one point, his unit vehicle broke down and they had to be escorted by Marines through enemy mine fields at night and in blackout conditions. He additionally reported being fired on ("in 4 days of ground combat" in Kuwait), encountering hundreds of dead enemy troops, and witnessing an Iraqi get "cut in half with a 50 caliber." See, .e.g., June 2012 VA Mental Health Clinic Note; see also VA Form 21-0781. The record shows that the Veteran was not awarded any medals indicative of combat service. Therefore, the Veteran's reported stressors must be corroborated by credible supporting evidence. Service personnel records confirm that the Veteran served in Southwest Asia from October 12, 1990, to April 21, 1991. In addition, his DD Form 214 confirms that his military occupational specialty (or MOS) was that of a radio repairer and that he served with the 502nd Field Support Battalion, 2nd Armored Division. The Board is cognizant that in the January 2011 rating decision on appeal, the RO conceded that the Veteran's stressors, as identified on his April 2010 VA Form 21-0781 (namely, driving through mine fields in blackout conditions, taking enemy fire, and seeing death/rotting bodies after the bombing of the Miracle Mile), were "plausible due to the facts and circumstances" of his deployment during Operation Desert Storm. The Board agrees. The Board finds that because the evidence of record demonstrates that the Veteran's MOS was that of a radio repairman and that he served with the 502nd Field Support Battalion, 2nd Armored Division, in Kuwait during Operation Desert Storm, that it would have been consistent with the circumstances of his service for him to have been exposed to residual scenes of combat activity, including dead bodies, in the fulfillment of his military duties. See 38 U.S.C.A. § 1154(a). Therefore, the Board finds that there is sufficient evidence corroborating the occurrence of the claimed stressful events. Thus, the next inquiry is whether the Veteran's current PTSD diagnosis is based on the reported stressors deemed to be corroborated. The record reflects that, in October 2012, a VA mental health examiner diagnosed the Veteran with PTSD (Axis I), which was based in part on his reported exposure to dead bodies during his service in the Gulf War. Therefore, because the Veteran has been diagnosed as having PTSD, which is linked to his in-service experiences during Operation Desert Storm, the Board finds that the evidence of record is sufficient to support a finding of service connection for PTSD. Accordingly, the Veteran's claim for service connection for PTSD is granted. In so finding, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran's specific contention is that he suffers chronic mental disability from in-service stressful events. The chronic mental disability resulting from the in-service stressful events has been clinically identified as PTSD. As the Board finds that service connection is warranted for PTSD, a full grant of the benefit sought on appeal has been awarded. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs