Citation Nr: 1333774	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  13-18 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Peter J. Meadows, Attorney


ATTORNEY FOR THE BOARD

C. Fields, Counsel


INTRODUCTION

The Veteran served on active duty from July 1980 to May 1992.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in September 2009 and March 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In addition to the paper claims file, the electronic records in Virtual VA and the Veterans' Benefits Management System (VBMS) have been considered.  

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).


FINDINGS OF FACT

The Veteran has currently diagnosed PTSD that is due to combat service.


CONCLUSION OF LAW

The criteria for service connection for PTSD have been met.  38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board's decision to grant service connection for PTSD constitutes a full grant of the benefit sought on appeal.  No further action is necessary to comply with the Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations.

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Where a disease is diagnosed after discharge, service connection will be granted when all of the evidence, including pertinent to service, establishes that the disease was incurred in service.  38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d).  

Service connection requires evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Further, to be entitled to service connection for PTSD, the record must generally include the following: (1) medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link, established by medical evidence, 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, 138 (1997).  If a veteran served in combat and claims a combat stressor, credible supporting evidence is not required.  Id.

A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding.  VAOPGCPREC 12-99 (1999).  Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence.  Gaines v. West, 11 Vet. App. 353, 359 (1998). 

When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

The Veteran contends that he currently has PTSD due to stressful incidents during combat service in the Persian Gulf War, including witnessing artillery and small arms fire and resulting casualties.  Review of combat unit records for the Veteran's unit confirmed that they were subject to incoming enemy artillery fire during his period of active service in February 1991.  Receiving enemy fire can constitute participation in combat.  Sizemore v. Principi, 18 Vet. App. 264 (2004).  As such, the Veteran "engaged in combat with the enemy," and his lay testimony alone is enough to establish the occurrence of the reported stressor.  See 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(f).  

The Veteran has been granted service connection for anxiety disorder, not otherwise specified (NOS), based on these in-service stressors.  However, there is conflicting evidence as to whether he has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125, which requires a diagnosis in conformance with the DSM-IV criteria.  

In particular, VA treatment records in June and August 1997 indicate a diagnosis of PTSD and depression based on neuropsychological evaluation.  The Veteran reported service in the Persian Gulf War and described mental health symptoms that were diagnosed as PTSD based on interview and diagnostic testing.  

Subsequent non-VA records dated in December 2008 and January 2009 also indicate a diagnosis of PTSD based on the Veteran's reports of symptoms including intrusive memories of combat in Desert Storm.  These diagnoses appear to have been provided by a registered nurse, not a mental health professional.  

Records dated from 2010 through 2013, the Veteran's treating VA psychiatrist has repeatedly diagnosed him as having chronic PTSD based on his description of mental health symptoms and combat stressors during the Persian Gulf War.  See, e.g., April 2011 and June 2012 VA mental health treatment records.

In contrast to the treatment records, two VA examiners have opined that the Veteran does not meet the DSM-IV criteria for a PTSD because he does not have a sufficient number of symptoms.  In a September 2009 report and January 2010 addendum, the initial VA examiner stated that the Veteran only had two symptoms of avoidance or numbing, and there must be at least three such symptoms for a diagnosis of PTSD.  He opined that anxiety disorder NOS was the most appropriate diagnosis, after review of treatment records available to that point.  

Service connection has been established for the diagnosed anxiety disorder.  Psychiatric disability other than anxiety disorder and PTSD has not been diagnosed.

In March 2013, a VA examiner stated that the Veteran's conceded combat stressor was sufficient to support a diagnosis of PTSD.  Nevertheless, he concluded that the DSM-IV criteria for PTSD had not been met because there were only two symptoms of avoidance or numbing.  The examiner noted that the Veteran's current VA mental health provider had diagnosed chronic PTSD.  However, he opined that the provider's diagnosis was not valid because it appeared to be based on an unstructured interview and diagnostic judgments of mental health providers could be unreliable.  

The Board finds that the evidence is in relative equipoise as to the existence of a current diagnosis of PTSD in conformance with the DSM-IV criteria.  Resolving reasonable doubt in the Veteran's favor; the elements for service connection for PTSD are established.  As such, service connection for PTSD is granted.  38 C.F.R. §§ 3.102, 3.304. 


ORDER

Service connection for PTSD is granted.



____________________________________________
Mark D. Hindin
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs