Citation Nr: 1334932 Decision Date: 10/31/13 Archive Date: 11/06/13 DOCKET NO. 05-32 914A ) 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: Johnathan Greene of Chisholm, Chisholm & Kilpatrick, Ltd. ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran served on active duty from November 1947 to November 1951. This appeal to the Board of Veterans' Appeals (Board/BVA) is from March 2004 and March 2005 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida - which, in relevant part, denied the Veteran's claim of entitlement to service connection for PTSD. On November 4, 2011, the Board granted service connection for a psychiatric disorder other than PTSD, namely, for anxiety disorder, not otherwise specified (NOS), but denied service connection for PTSD. The Veteran appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In an April 2013 Memorandum Decision, the Court set aside the Board's November 4, 2011 decision to the extent it had denied service connection for PTSD specifically. Before providing further introductory remarks and prior to addressing the merits of this claim, the Board would like to emphasize that part of the Court's rationale for setting aside the Board's decision regarding this issue of entitlement to service connection for PTSD was that it was unaware of the effective date assigned for the service-connected anxiety disorder, NOS. The Board, as mentioned, had Board granted service connection for anxiety disorder, NOS, in the November 2011 decision. The Court reasoned that, because a diagnosis of anxiety was not shown until several years after the Veteran had filed his most recent claim of entitlement to service connection for PTSD, he could be prejudiced if the effective date of service connection for his anxiety disorder, NOS, was later than the date of claim. The Court noted that PTSD had been shown when he had filed his most recent claim in April 2003. Thus, the Court explained that a remand was necessary to avoid an effective date later than the date of claim, as PTSD was shown from 2003 to 2009 and that a simple anxiety disorder was shown only thereafter. See generally 38 C.F.R. § 3.400 (2013) (the primary regulation pertaining to the effective date of claims for benefits granted by VA). Apparently, when issuing its April 2013 Memorandum Decision the Court was unaware that, by way of an intervening February 2012 rating decision, the RO had assigned an effective date of April 25, 2003, for the grant of service connection for the newly service-connected anxiety disorder, NOS. As such, the Court's fears when issuing that Memorandum Decision were unfounded because the effective date assigned was the date upon which the Veteran had sought to reopen his claim of entitlement to service connection for PTSD. See Id. In June 2010, the Board had remanded this claim of entitlement to service connection for PTSD to the RO via the Appeals Management Center (AMC) for further development and consideration. The reasons for remanding the claim for PTSD were to obtain additional information concerning the Veteran's alleged stressors that he believes caused his PTSD, to then try and verify the occurrence of these claimed traumatic events, including by making another attempt to obtain his service personnel records and by forwarding any additional information obtained to the U.S. Army and Joint Services Records Research Center (JSRRC), and then if necessary to have him undergo another VA compensation examination to clarify whether he has consequent PTSD. To this end, he had another VA compensation examination on remand in September 2010. And although the examiner determined the Veteran did not then meet the diagnostic criteria for PTSD, he concluded the Veteran did have an anxiety disorder, NOS, and that it was at least as likely as not his claimed stressor in service involving significant combat in the infantry and artillery and witnessing casualties during the Korean Conflict was adequate to support this other diagnosis and that his symptoms were related to this claimed stressor. This claimed stressor in the Korean Conflict, added this VA examiner, was related to the Veteran's fear of hostile military or terrorist activity. The Board therefore is granting this claim on its underlying merits in light of that VA compensation examiner's favorable opinion and the liberalizing revisions to 38 C.F.R. § 3.304(f)(3) that took effect as of July 13, 2010, so only about 2 months before that examination and during the pendency of this appeal. See 75 Fed. Reg. 39843, 39852 (July 13, 2010) & 75 Fed. Reg. 41092 (July 15, 2010). The Veteran's representative recently requested an additional 60-days' extension, so until December 13, 2013, to allow them opportunity to obtain more evidence and present additional argument. The request was received at the Board on October 18, 2013. Because the Board is granting this claim of entitlement to service connection for PTSD, in full, based on the evidence already of record, the need for additional time is obviated. The Veteran will not be prejudiced by the Board going ahead and deciding his claim without the potential benefit of this additional evidence and argument because his claim is being granted, regardless. In other words, not permitting the attorney time to obtain and submit this additional evidence can only at most amount to harmless error. 38 C.F.R. § 20.1102 (2013). Moreover, it would only unnecessarily delay the granting of the claim. Please also note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT It is just as likely as not the Veteran met the criteria for a diagnosis of PTSD before October 2009, and it has been attributed to an event coincident with his service. CONCLUSION OF LAW It is both shown that he has PTSD, at least has since the filing of his claim for this condition - aside from an anxiety disorder, NOS - and that his PTSD is the result of an injury (traumatic event, i.e., stressor) during his military service. 38 U.S.C.A. §§ 1110, 1131, 1154 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Since, however, the Board is granting this claim, in full, there is no need to discuss whether there has been compliance with these obligations. This is because, even were the Board to assume for the sake of argument there has not been, this would be inconsequential and therefore at most amount to nonprejudicial, i.e., harmless error. 38 C.F.R. § 20.1102. See also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in Veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Service Connection for PTSD The Veteran claims that he developed PTSD as a result of his combat experiences during the Korean Conflict. In general, service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Stated somewhat differently, service connection requires: (1) competent and credible evidence confirming the Veteran has the claimed disability or at least has since the filing of the claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002). Service connection for PTSD, in particular, requires: [1] a current medical diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a), [2] credible supporting evidence that the claimed in-service stressor(s) actually occurred, and [3] medical evidence of a causal relationship between current symptomatology and the specifically claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). With respect to this first requirement, a "clear" diagnosis of PTSD is not required. Rather, the diagnosis, as mentioned, need only be in accordance with § 4.125(a), which simply mandates that, for VA compensation purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV). The Court has taken judicial notice of the mental health profession's adoption of the DSM-IV as well as its more liberalizing standards to establish a diagnosis of PTSD. The Court acknowledged the change from an objective "would evoke . . . in almost anyone" standard in assessing whether a stressor is sufficient to trigger PTSD to a subjective standard (e.g., whether a person's exposure to a traumatic event and response involved intense fear, helplessness, or horror). Thus, as noted by the Court, a more susceptible person could have PTSD under the DSM-IV criteria given his or her exposure to a traumatic event that would not necessarily have the same effect on "almost everyone." See Cohen v. Brown, 10 Vet. App. 128, 140-41 (1997). The newer DSM-V has now been officially released. However, 38 C.F.R. § 4.130 still explicitly refers instead to the DSM-IV. The regulation legally requires the Board to consider this earlier version of the DSM until such time as the regulation is changed. There is a regulation change in the works that would change the regulation to reference "the current version of the DSM." But it is unclear when that proposed change will be published. Regardless, in the meantime the Veterans Benefits Administration (VBA) and Veterans Health Administration (VHA) have essentially agreed that their target date for moving to DSM-V was October 1st, coinciding with the beginning of the new fiscal year. It therefore is important to bear in mind that the regulation still explicitly refers to the DSM-IV, regardless of the fact that the Board may begin seeing private evidence instead referring to criteria under the succeeding DSM-V. The evidence necessary to establish the occurrence of a stressor during service, to support this diagnosis, varies depending on whether the Veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is shown through military citation or other appropriate evidence that a Veteran engaged in combat with the enemy, and the claimed stressors are related to that combat, his lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." In such cases, no further developmental or corroborative evidence is necessary. 38 C.F.R. § 3.304(f)(2). See also 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d). Under 38 U.S.C.A. § 1154(b), and the implementing VA regulation 38 C.F.R. § 3.304(d) and (f)(2), require that a Veteran have actually participated in combat against an enemy force, meaning participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply if the Veteran only served in a general "combat area" or "combat zone" but did not himself engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). This determination is made on a case-by-case basis. See also Moran v. Peake,525 F.3d 1157 (Fed. Cir. 2008). There also are other exceptions lessening the burden of the amount and type of evidence needed to establish the occurrence of a stressor in service, such as if there was a diagnosis of PTSD during service (38 C.F.R. § 3.304(f)(1)), there was fear of hostile military or terrorist activity (the new subpart (f)(3)), the Veteran was a prisoner of war (POW) (subpart (f)(4)) or the claim is predicated on personal or sexual assault (subpart (f)(5)). Here, the Veteran has a current diagnosis of PTSD in accordance with the criteria set forth in the DSM-IV. Outpatient treatment records from a local Vet Center show he received a diagnosis of PTSD in March and April 2002. In Cohen, the Court noted that a diagnosis of PTSD is presumably in accordance with the DSM-IV criteria, both in terms of the adequacy and sufficiency of the stressors claimed. The Board is cognizant that the revisions to 38 C.F.R. § 3.304(f)(3) require that a VA psychiatrist or psychologist, or contract equivalent, confirm the claimed stressor is adequate to support this diagnosis. However, this liberalizing version of the law does not preclude acceptance of the Vet Center diagnosis, as a PTSD diagnosis is presumptively in accordance with the DSM-IV criteria. Furthermore, the Vet Center diagnosis was based largely if not entirely on the Veteran's recitation of events in service. The Board accepts the Veteran's lay testimony concerning these events as credible or substantiated since seemingly involving combat, so no reason to reject this history out of hand. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) and Coburn v. Nicholson, 19 Vet. App. 427 (2006) (recognizing that a Veteran may provide credible testimony regarding his history of events and, absent a contrary finding this testimony is not credible, it is permissible for an examiner in turn to rely on it in making a diagnosis and attributing the diagnosis to the claimed events in service). The Board is aware that two VA compensation examiners reviewed the claims file for the pertinent medical, service and other history, interviewed the Veteran personally, and performed comprehensive mental status evaluations before concluding he does not satisfy the diagnostic criteria for PTSD. The October 2009 VA examination report notes he does not have any psychiatric disorder. That examiner concluded the Veteran's "mild or transient symptoms do not meet the DSM-IV criteria for a mental disorder." Under Axis I, that examiner therefore listed "No diagnosis." Following and as a result of the Board's June 2010 remand of this claim, the Veteran was afforded another VA compensation examination in September 2010 to determine the exact nature and etiology of his psychiatric disorder(s). But based on a review of the claims file, an in-depth interview of him, and an objective mental status evaluation, this additional examiner agreed the Veteran does not meet the criteria for a diagnosis of PTSD. Instead, the only Axis I diagnosis was anxiety disorder, NOS. The examiner however linked that other diagnosis to the Veteran's service, which in turn provided the basis for granting service connection for the anxiety disorder, NOS, albeit not also for PTSD. It seems the Veteran no longer had PTSD as of October 2009. However, the current diagnosis element of service connection for PTSD is satisfied because a diagnosis is shown at some point during the pendency of the appeal of this claim, more specifically, since the filing of this claim. See McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). So, to summarize, a current diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) has been shown. Id. Furthermore, the Board has accepted the Veteran's alleged combat-related stressors as credible. In cases, as here, where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) and its implementing regulation, 38 C.F.R. § 3.304(d) (and (f)(2)), are applicable. This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence. If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The Federal Circuit Court has held that, in the case of a combat Veteran, not only is the combat injury presumed, but so, too, is the disability due to the in-service combat injury. Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012). To establish entitlement to service connection, however, there still must be evidence of a current disability and a causal relationship between the current disability and the combat injury. Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). So merely having combat service does not obviate the need for this supporting nexus evidence. Here, though, there additionally is evidence of the required causal relationship between current symptomatology and the claimed in-service stressors. Thus, the criteria for service connection for PTSD are met. See 38 C.F.R. § 3.304(f); see also 38 C.F.R. § 3.303. ORDER Service connection for PTSD is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs