Citation Nr: 1335923 Decision Date: 11/05/13 Archive Date: 11/13/13 DOCKET NO. 11-00 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. T. Sprague, Counsel INTRODUCTION The Veteran had active service in the United States Navy from March 1967 to August 1969, to include combat duty in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board, in May 2013, remanded the claim for further evidentiary development. All actions required by the remand have occurred, and the claim is ripe for appellate review. The Veteran appeared at a videoconference hearing in April 2012. A transcript is of record. The Veteran's entire claims file, to include the portion contained in the electronic "Virtual VA" system, was reviewed. The Veteran has, in a written submission, requested that a previously denied claim for entitlement to service connection for hepatitis C be reopened. No action has been taken on that claim, and it is not in appellate status. The claim is referred to the Regional Office for appropriate development. FINDING OF FACT The evidence of record is, at the very least, in relative equipoise regarding a finding that the Veteran currently experiences PTSD as a result of his combat service in the Republic of Vietnam. CONCLUSION OF LAW Entitlement to service connection for PTSD is warranted. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSIONS Applicable law provides that service connection will be granted if it is shown that the Veteran experiences a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a preexisting injury or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an 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. See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e. under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). For reasons discussed in detail below, the Board concedes that the Veteran served in combat while in Vietnam. The Veteran alleges that he developed PTSD as a result of his experiences in the Republic of Vietnam. Specifically, he has alleged that he engaged in combat with the enemy while serving as an assault boat coxswain. Also, he states that racial tensions in his hometown of Kansas City, Missouri caused him to become very disaffected while in the military, and that growing racial tensions in the United States during the late 1960s caused him to experience racial harassment while serving on active duty in Vietnam. The Veteran's DD Form 214 indicates that he did have service as an assault boat coxswain, and that he served for two tours (i.e. two years) abroad in the Republic of Vietnam working on these small boats. He contends that he participated in riverine operations, ferrying Marines and supplies to assault ships within the inland waterways of Vietnam. He has stated that it would be necessary to engage the enemy from the assault boats, and that his small craft would take fire while engaged in these activities. Further, the Veteran has asserted that he saw comrades wounded and killed, and that he would transport injured servicemen from shore on his boat. The Veteran was awarded the Vietnam Service Medal and Republic of Vietnam Campaign Medal for his service in that nation. While there are no specific decorations or awards of record to specifically indicate combat service, the Veteran's naval rate was, as noted, that of an assault boat coxswain (Boatswain's Mate). The very nature of such duty in Vietnam would, by necessity, involve engaging enemy targets in the inland waterways of that nation. The Veteran's testimony of firing at shore, and his attestations of receiving enemy fire, are consistent with the type of service provided, and the Board can concede that the Veteran participated in combat during his naval service. With regard to the alleged noncombat stressors, the Veteran has supplied newspaper clippings which detail race riots occurring in the United Stated at a time when he was stationed in Vietnam. The Veteran has alleged that these events caused him to become disinterested in his military duties, leading to drug abuse and other behavioral problems. Also, the Veteran has stated that he became particularly disturbed over a letter his mother sent him, in which a National Guard solider stood in front of his family home with a weapon similar to what was being used in Vietnam. The Veteran stated that racial tensions began to rise while he was in Vietnam due to the events back home, and that subsequent racial harassment occurred which, in addition to combat stress, caused him to develop a current mental disorder. The Veteran was not diagnosed with a psychiatric disorder in service, and it is not contended otherwise; however, post-service, the Veteran has had numerous consultations with private mental health practitioners to address his psychiatric symptoms. There are numerous clinical records from 2009-2010 from a private Doctor of Psychology (Psy. D.), where PTSD was assessed. This clinician, in April 2010, wrote to the Veteran's employer, and noted that it was her impression that the Veteran experienced PTSD. She explained that, in her judgment, it was "at least as likely as not that this diagnosis is a result of active military service." In September 2010, the private psychologist clarified a rationale for her assessment of PTSD. Specifically, she noted that the Veteran had been under fire while in Vietnam and that a member of his unit was killed. Further, she reported that the receipt of a newspaper article describing deaths associated with the Kansas City racial rioting was, in itself, a traumatic event for the Veteran. It was noted that the Veteran experienced fear of being shot while serving in his combat capacity, and that he felt helpless and horrified at the notion that his black peers were being killed in the United States by other citizens "for whom he was risking his life." The psychologist noted that the Veteran experienced nightmares, "flashbacks," and intrusive thoughts of those events. Further, it was noted that the Veteran avoided military-related stimuli, and that he had anger outbursts with hypervigilance. An inability to recall the specifics of an in-service court-martial was noted as a memory defect associated with the PTSD assessment. The condition was described as "chronic." The Veteran has, subsequent to this, been assessed by VA on two separate occasions. In VA examination reports of March 2011 and July 2013, the Veteran was not diagnosed with PTSD or any other acquired psychiatric disorder save for chronic substance abuse. The reports of these examinations are lengthy; however, it is not readily apparent that all relevant post-service assessments were reviewed in detail by the respective examiners. The report of the March 2011 examiner includes an annotation that "available medical records" were reviewed, but the private assessment of PTSD in 2010 was not discussed. Simply, this examiner noted the same reported stressors as had been alleged by the Veteran throughout the appeal, but felt that the criteria for a diagnosis of PTSD had not been met. With respect to the assessment of the July 2013 VA examiner, which also did not contain a diagnosis of PTSD, the Board notes that there had been an additional submission of a private medical examination, dated in February 2012, which was not considered in much detail in this most recent VA assessment. The report of the 2012 private examination, conducted by a psychologist, did include a review of the Veteran's previous psychotherapy in 2009 and 2010, and based on two types of psychological testing methods, a diagnosis of PTSD was entered. The psychologist stated that the Veteran was "exposed to combat actions," and that included exposure to "direct small arms fire from the enemy," as well as the threat of improvised "booby traps." It was noted that the Veteran experienced intrusive thoughts about Vietnam "almost daily," and that he avoided military-related programming and anything which described racism. The examiner concluded that the Veteran was "significantly impacted by the combination of his combat experiences and the racial tension that developed over two combat tours." The July 2013 examiner did not discuss these 2012 findings in the narrative portion of the examination report; however, it was noted that this private assessment had occurred (and that a different conclusion as to diagnosis was entered). The examiner explained that it was "unclear [as to what] has led to the contradictory indication between today's evaluation and what is reported in the [2012 private report]." Nonetheless, the VA examiner determined that the Veteran did not, in her view, meet the criteria for a diagnosis of PTSD. The examiner noted that the Veteran was confused as to why he was being seen, and he was surprised that his claim was on appeal. The VA examiner did not discuss the noted memory problems documented in the 2010 private assessment as symptoms of PTSD (in that case, with regard to the specifics of legal problems in the military). Further, the 2013 examiner stated that it would be "speculative" to opine as to if drug abuse in service was "a means of coping" with his military experiences. This, in itself, is confusing on the part of the VA examiner, as it suggests that there was significant stress associated with the Vietnam service for which "coping" would potentially be necessary. As noted, the Veteran's service in Vietnam involved some exposure to combat. While the Veteran was not decorated for valor or wounds, his service personnel records document that he was involved in riverine assault boat operations for two years in Vietnam. Such duty would, by necessity, involve the direction of small arms fire against enemy targets and, consequently, would also involve the receipt of incoming fire. His lay testimony describing combat stressors is deemed credible and consistent with the type of service rendered. While the racial tensions both in the United States and in Vietnam also played some role in the Veteran's behavioral problems in service, an assessment has been made by two private psychologists who attribute chronic PTSD, at least in part, to his combat service as an assault boat coxswain. The full extent of the private assessments were not discussed by VA examiners, and the most recent 2013 assessment includes a determination that it is "unclear" as to why the private psychologist, in 2012, assessed the Veteran with combat-related PTSD. There are two well-rationalized private opinions supportive of the claim and two VA opinions which do not appear to have fully considered all evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Indeed, the 2013 opinion, while indicating that a review of other evidence had occurred, could not clarify as to why there was a discrepancy between the included findings and those which occurred the previous year in the February 2012 private assessment. At the very least, the evidence is in relative equipoise regarding a finding that the Veteran has current PTSD as a result, at least in part, of combat experiences in the Republic of Vietnam. As that is the case, the criteria for service connection have been met, and the claim will be granted. ORDER Entitlement to service connection for PTSD is granted. ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs