Citation Nr: 1333937 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-03 489 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: B. Perry Morrison, Jr., Attorney ATTORNEY FOR THE BOARD O. Lopez, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1973 to January 1976 and from April 1976 to May 1980. This case comes to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDING OF FACT The evidence of record shows that the Veteran has PTSD that is likely related to his service as a military police officer in Berlin, Germany. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and to Assist Upon its receipt of a claim for veterans' benefits, VA, under the Veteran's Claims Assistance Act (VCAA), must: (1) notify the claimant of the information and evidence not of record necessary to substantiate the claim; and (2) assist the claimant in substantiating the claim. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). In this case, the Board is granting the Veteran's claim in full. Therefore, if VA committed any errors regarding its duties to notify or to assist, those errors were harmless and did not prejudice the Veteran. II. Merits of the Claim Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Generally, "[t]o establish a right to compensation for a present disability, a Veteran must show: "(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 incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for PTSD requires: (1) medical evidence of a diagnosis of PTSD that conforms to the Diagnostic Statistical Manual, Fourth Edition (DSM-IV); (2) medical evidence of a link between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2013). During the pendency of the Veteran's appeal, VA regulations relating to stressor verification and service connection for PTSD changed. Specifically, 38 C.F.R. § 3.304(f)(3) went into effect on July 13, 2010. The regulation provides that, 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 posttraumatic stress disorder 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 38 C.F.R. § 3.304(f)(3), "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. See 38 C.F.R. § 3.304(f)(3) (2013). This regulatory change has eliminated 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." See 38 C.F.R. § 3.304(f)(3) (2013). In deciding a claim, the Board must consider all information and lay and medical evidence of record. When there is an approximate balance of positive and negative evidence, i.e., when the evidence is in a state of "equipoise," regarding any issue material to the determination of a matter, the Board must give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (West 2002 & Supp. 2012). The Veteran's DD-214 and several statements from colleagues who served with him collectively corroborate the Veteran's statements that he served as military police officer in West Berlin, Germany in 1973, patrolling the Berlin Wall. The Veteran states that his PTSD is due to witnessing East German and Russian patrol guards shoot innocent civilians who tried to escape into West Berlin. A review of the Veteran's VA psychiatric records indicates that he was diagnosed with PTSD in accordance with the DSM-IV in January 2008 by a psychiatrist with whom VA contracted. The report of that examination shows that the examiner reviewed the claims file, medical records, and interviewed the Veteran in conjunction with the psychiatric examination. Moreover, the Veteran's complaints were recorded in the report of the examination. The Board, therefore, finds this examination adequate upon which to base a decision with regard to the Veteran's claims. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once the VA undertakes an effort to provide an examination to develop a claim, even if not statutorily obligated to do so, the VA must ensure the examination provided is adequate). As to the Veteran's in-service stressor, the examiner stated: The traumatic event occurred [in] Berlin while he was stationed with the 118th... He witnessed others being wounded, other being injured, and other being killed. The traumatic events have had consequences. The consequences are ... [that] he has flashbacks and nightmares of these experiences. The [Veteran] did not receive any help or talk to anyone afterwards ... The [Veteran's] response to the stressor at the time of the trauma was as follows: he felt helpless, he felt horror, and he was stunned or in shock by the traumatic event. Upon return to the States he became preoccupied with the feeling he should have done something to stop the killing, even though he logically knows he could not. The traumatic event is re-experienced as follows: ... persistent, recurrent recollection of the event. The recollections are of the people he saw shot and blown up and crying out in the night. There is a persistent, recurrent, distressing dream of the event. The examiner concluded that the Veteran's "PTSD symptoms developed in response to active duty at the Berlin Wall." The examiner further concluded that the Veteran met the criteria for PTSD under the DSM-IV because the following criteria are present: In Criteria A, the [Veteran] has been exposed to a traumatic event which involved actual death, threatened death, serious injury and threat to the physical integrity of other[s]. The [Veteran] responded with helplessness and horror. In Criteria B, the traumatic event is persistently experienced in the following way: recurrent recollection of the event, feeling as if the traumatic events were recurring, recurrent distressing dream of the event, intense distress exposure to a similar event and physiological reactivity that symbolizes an aspect of the traumatic event. In Criteria C, the [Veteran] demonstrates persistent avoidance of the stimuli associated with trauma as follows: efforts to avoid thoughts, feelings or conversation associated with the trauma, markedly participation in activities, effort to avoid activities that arose [from] the event and feeling of detachment or estrangement from others. Criteria D, the [Veteran] has persistent symptoms of increased arousal as follows: difficulty falling or staying asleep, difficulty concentrating, irritability or outbursts of anger and exaggerated startle response. The duration of the disturbance is more than one month. The disturbance causes distress or impairment in social, occupational, or other areas of functioning. The disease is chronic with the duration of symptoms three month or more. The Veteran has been diagnosed with PTSD by a psychiatrist with whom VA contracted, based on the Veteran's reports of fear of hostile military action during his service in Berlin, as required by 38 C.F.R. § 3.304(f). Further, the Veteran's PTSD symptoms are related to his fear of hostile military activity that he experienced Berlin. Indeed, the examiner stated the Veteran developed these symptoms in response to "active duty at the Berlin Wall." The Board finds that the Veteran's claimed stressors are consistent with the places, types, and circumstances of his service, and therefore, that the Veteran's testimony alone sufficiently establishes that the claimed in-service stressor occurred. Weighing the evidence of record, the Board concludes that the evidence supporting a grant of service connection for PTSD is at least in equipoise. In this regard, there is sufficient evidence of a current diagnosis of PTSD, a corroborated in-service stressor, and medical evidence linking the diagnosis of PTSD to the in-service stressor. Under such circumstances, the Board finds that reasonable doubt should be resolved in the Veteran's favor and that entitlement to service connection for PTSD is warranted. ORDER Entitlement to service connection for Post-Traumatic Stress Disorder (PTSD) is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs