Citation Nr: 1334475 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-50 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran (appellant) served on active duty from March 1974 to March 1977. He also had subsequent periods of service in the U.S. Army Reserves. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In April 2011, the Veteran appeared before the undersigned Veteran's Law Judge and gave testimony in support of his claim. A complete transcript is of record. In December 2011 and January 2013, the Board remanded the case for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT The Veteran has been diagnosed as having PTSD based on an in-service stressor for which there is credible supporting evidence. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In view of the Board's favorable decision in this appeal, further assistance is unnecessary to aid the Veteran in substantiating his claim. Legal Criteria Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease initially diagnosed after 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) (2012). Establishing service connection generally requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV); (2) a link, established by medical evidence, between current PTSD symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred; except that in the case of a combat Veteran claiming a combat stressor, credible supporting evidence is generally not required. 38 C.F.R. § 3.304(f) (2012). 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009). "[L]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Veteran seeks service connection for PTSD which he contends is related to his military service. He has reported that his disability began in 1975, and that he was treated in Bad Kissingen, Germany at the Troop Medical Center. He reported that he witnessed the death of a soldier who was run over by a tank in October 1975. He also reported that while escorting a soldier to Frankfurt airport in Germany the Jeep flipped over and ejected everyone, killing Private Walter Walker and injuring others, including the Veteran. (See, January 2007 claim). The Veteran testified in April 2011 that he was treated in service at the base in Bad Kissingen for PTSD for five months. He stated that he was treated twice a week during that time. He reported that as to the tank incident there was a memorial service at the base for the soldier that was killed. Additionally, during his hearing, the Veteran testified that while he was in the Illinois National Guard, he was in the 378 Chemical Company, and during that time, he also experienced traumatic things. He reported specifically that while in the Mojave Desert he saw a man who had been in a jeep accident and had sustained a severe head injury. He reported that the man subsequently died. Service treatment records are negative for any evidence of complaints, treatment or a diagnosis of PTSD or any other psychiatric disability. VA outpatient treatment records dated from 1999 to 2012 show diagnoses and treatment for PTSD. As discussed below, the Veteran was also diagnosed with PTSD during VA examinations in March 2012 and August 2013. The record thus demonstrates a current disability. Turning to the question of whether there is credible supporting evidence that the claimed in-service stressors occurred, the Board notes that the reported stressor involving the death of Private Walker in a jeep accident in Frankfurt, Germany has been verified. See April 2012 Listing of Stressor Information and Verification letter from the Appeals Management Center. In addition, the Board notes that during his April 2011 hearing, the Veteran testified that his First Sergeant, R.S., whom he served under during his tour of duty in the National Guards with the 378 Chemical Company, was aware of the incident involving the man he found dead in the Mojave Desert. First Sergeant R.S. submitted a statement in July 2013, in support of the Veteran's claim, and reported that the Veteran, who was a truck driver and mechanic in his unit in February 1985, was among a group of soldiers who found a civilian vehicle overturned in the desert with the driver dead inside. He reported further that after seeing the dead body, the Veteran acted differently, and that after his training was completed and his unit returned to Illinois, the Veteran was discharged under honorable conditions. See July 2013 statement from First Sergeant, R.S., 378 Chemical Company. The Board finds this to be credible supporting evidence of the stressor. While it does not confirm all of the details reported by the Veteran, credible supporting evidence need not corroborate every detail of a reported stressor. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Considering that the Veteran has consistently reported during VA outpatient treatment, VA examination, and during his April 2011 hearing, the stressor involving the overturned vehicle in the desert with a dead soldier inside, and the lay statement submitted by First Sergeant R.S., corroborating the Veteran's reports; the Board finds that the Veteran's reports are credible. Thus, incurrence of this in-service stressor is also established. The Board also finds that there is sufficient evidence supporting a nexus/link between the Veteran's PTSD diagnosis and his verified in-service stressors. In this regard, the Veteran was afforded a VA psychiatric examination in March 2012. He reported that he had received counseling for several months between 1974 and 1975 while stationed in Germany after witnessing a man being crushed by a tank that he had been "ground guiding." He also reported coming across a single vehicle accident in the Mojave Desert, where the driver had suffered an open head injury, and died. The examiner diagnosed PTSD based on DSM-IV criteria, and opined that the condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. His rationale was that the Veteran had suffered symptoms since his Army service from 1974-1977, and prominent symptoms have included nightmares of his reported stressors. The Veteran was afforded another VA examination in August 2013. He again reported in-service stressors, including a tank accident where he unintentionally ran over and killed a man, as well as the incident where he found a dead man in an overturned jeep in the desert. The examiner diagnosed PTSD and noted that both the Veteran's reported stressors contributed to his diagnosis. The examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event or illness. In rendering his opinion, he noted that the Veteran more than likely suffers from service trauma-connected PTSD, and that this was his opinion, as well as the opinion of the March 2012 VA examiner and the Veteran's treating psychologist, who had worked with him for over two years. He also noted that the Veteran had submitted a letter from his First Sergeant R.S., which provided clear support for the reported stressor event involving the man in the desert who died in 1985 following a motor vehicle accident. There is no contrary medical opinion of record, and the opinion was based on an accurate history and supported by an implicit rationale; it is thus adequate. The Board finds no adequate basis to reject the competent medical evidence that is favorable to the Veteran, based on a rational lack of credibility or probative value. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Evans v. West, 12 Vet. App. 22, 26 (1998). This favorable medical evidence supports a finding that the Veteran suffers from PTSD as a result of an in-service stressor event. As the Veteran has been diagnosed as having PTSD based on an in-service stressor and the record includes credible supporting evidence of the stressor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 5107(b); 38 C.F.R. § 3.304(f). ORDER Service connection for PTSD is granted. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs