Citation Nr: 1333808	
Decision Date: 10/25/13    Archive Date: 11/06/13

DOCKET NO.  13-12 416	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to service connection for psychiatric disability, to include posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for psychosis for the purpose of establishing eligibility for treatment under 38 U.S.C.A. § 1702. 


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Laura E. Collins, Associate Counsel



INTRODUCTION

The Veteran served on active duty from August 1968 to August 1971 and September 2001 to August 2002, including service in the Republic of Vietnam from July 1969 to July 1970.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2011 decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

1.  The Veteran's PTSD and depression NOS had its onset in service.

2.  At no time has the Veteran been diagnosed with psychosis.


CONCLUSIONS OF LAW

1.  PTSD and depression NOS was incurred in service.  38 U.S.C.A. §§ 1110, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3) (2013).

2.  The criteria for service connection for psychosis for the purpose of establishing eligibility for treatment have not been met.  38 U.S.C.A. §§ 1110, 1702 (West 2002); 38 C.F.R. §§ 3.303, 3.384 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

In light of the fully favorable determination in the claim of service connection for psychiatric disability, no further discussion of compliance with VA's duty to notify and assist is necessary.  As to the issue of service connection for psychosis for the purpose of establishing eligibility for treatment, the application of the law to the undisputed facts is dispositive; thus no discussion of VA's duty to notify and assist is necessary.  Mason v. Principi, 16 Vet. App. 129 (2002).

I.  Psychiatric disability

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) (2013).

A Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor if:  (1) The claimed stressor is related to his fear of hostile military or terrorist activity; (2) The claimed stressor is consistent with the places, types, and circumstances of the Veteran's service; and (3) a VA psychiatrist or psychologist, or contract equivalent, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and the Veteran's symptoms are related to the claimed stressor.  38 C.F.R. § 3.304(f)(3).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

The Veteran contends that his PTSD was caused by exposure to stressors when he served in Vietnam as a door gunner.

Service personnel records confirm that the Veteran served in the Republic of Vietnam from July 1969 to July 1970 in the Thirteenth Campaign.  Service treatment records show that in October 1969 he was cleared to serve as a door gunner.  He reports in lay statements and at medical examinations that while he served in this role, his stressors included being shot at while flying in Chinooks, shooting at enemy on the ground, being subjected to mortar and rocket attacks, landing in dangerous places to transport ammunition and pick up the wounded, and seeing many wounded and dead, both enemy and allies.  He recounts many close calls, bullets flying past his head, and losing friends.  

The Veteran is competent to testify to events and feelings, including the stressors, fear, and horror that were experienced during service.  Layno.  Further, his personnel records demonstrate that his reports are consistent with the places, types, and circumstances of his service.  38 U.S.C.A. § 1154.  As such, the Board finds the lay testimony of the Veteran to be credible.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Moreover, his claimed stressors are consistent with the places, types, and circumstances of his service, and are related to his fear of hostile military or terrorist activity.  The Board finds that the Veteran's testimony establishes the occurrence of his claimed stressors.  

The Veteran was diagnosed with PTSD and depression NOS by private psychologist Dr. A. in May 2010.  Dr. A. specifically stated that the Veteran "was referred for psychological evaluation secondary to his period of military service in Vietnam."  Following a thorough two-hour assessment, and lengthy rationale, she concluded that his "PTSD symptoms are, as likely as not, service-connected."

The January 2011 VA examiner, a psychologist, diagnosed PTSD but opined it was less likely related to his combat stressors because he was not diagnosed until May 2010.  However, the Board assigns no probative weight to this opinion because it contradicts the examiner's own findings.  Namely, the examiner determined that the Veteran was exposed to a high overall level of traumatic stress that met the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) stressor criterion.  She identified no source of traumatic stress outside of his military experience.  Specifically, the examiner described the primary stressors related to PTSD as "exposure to combat in Vietnam.  War exposed."  Accordingly, the Board finds that the content of the VA psychologist's evaluation actually supports the Veteran's claim that his PTSD is linked to his combat stressors.

The medical evidence of record establishes a diagnosis of PTSD and a link between the current symptomatology and the Veteran's stressors.  In addition, the evidence shows that he has and depression NOS, which has not been disassociated from service or from his PTSD.  Thus, service connection for PTSD and depression NOS is warranted.  

II.  Psychosis

The provisions at 38 U.S.C.A. § 1702 state that if a Veteran develops an active psychosis within a certain specified time periods, he shall be deemed to have incurred such disability in active military service.  "Psychosis" is defined in the regulations to mean certain enumerated diagnoses listed in the DSM-IV.  PTSD and depression, not otherwise specified (NOS), are not among the enumerated diagnoses.  38 C.F.R. § 3.384.

The evidence shows that the Veteran's only psychiatric diagnoses have been PTSD and depression, NOS.  Therefore, he has not been diagnosed with psychosis under 38 C.F.R. § 3.384.  Because the undisputed facts show that the Veteran has never had a diagnosis of psychosis, there is no entitlement under the law to the benefit sought.  Accordingly, his claim must be denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426 (1994).


ORDER

Service connection for PTSD and depression NOS is granted.

Service connection for psychosis for the purpose of establishing eligibility for treatment is denied.


____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs