Citation Nr: 1336245 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 10-29 801 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Bruce, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to March 1983. The Veteran had another period of active service, but due to a less than honorable discharge, he would not be eligible for service connection based on that period of service and it will therefore not be discussed. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The July 2009 rating decision denied the Veteran's claim for entitlement to service connection for PTSD. A review of the Virtual VA paperless claims processing system was conducted. FINDING OF FACT The competent evidence demonstrates that the Veteran's PTSD is related to a verified stressor that he experienced while on active duty service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2009); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Given the favorable disposition of the claim for service connection for PTSD, the Board finds that all notification and development actions needed to fairly adjudicate this claim have been accomplished. Merits of the Claim Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1131. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. However, the U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) "restricts itself to chronic diseases" found in 38 C.F.R. § 3.309(a). Walker v. Shinseki 708 F.3d 1331 (Fed. Cir. 2013) ("Nothing in § 3.303(b) suggests that the regulation would have any effect beyond affording an alternative route for proving service connection for chronic diseases."). As PTSD is not a chronic disease under § 3.309(a), the Court finds as a matter of law that continuity of symptomatology may not serve in lieu of medical nexus. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a). 38 C.F.R. § 4.125(a) refers to the American Psychiatric Association Diagnostic and Statistical Manual for Mental Disorders, 4th ed. (1994) (DSM-IV) as the source of criteria for the diagnosis of claimed psychiatric disorders. DSM-IV provides that a valid diagnosis of PTSD requires that a person has been exposed to a traumatic event in which both of the following were present: (1) the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of himself or others, and (2) the person's response involved intense fear, helplessness, or horror. Service connection for PTSD also specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2013). If the evidence establishes a diagnosis during service and the claimed stressor is related to that service, in the absence of clear and convincing evidence to the contrary, and provided that 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. See 38 C.F.R. § 3.304(f)(1) (2013). The Board notes initially that the Veteran currently has an Axis I diagnosis of PTSD. See June 2009 VA examination report. The June 2009 VA examiner diagnosed the Veteran with PTSD noting that the Veteran met each of the key elements for an Axis I diagnosis as required by the DSM-IV. During the Veteran's first period of active duty service, in December 1980, he requested to see a psychiatrist because he was struggling with various work and family issues. Upon evaluation it was determined that he had situational depression. He again had a mental health consultation in March 1981. It was determined that he had an adjustment disorder with mixed emotional features in a passive-aggressive personality. There are no psychiatric issues noted on either his October 1978 entrance examination or his July 1981 separation examination. The Veteran testified at his March 2013 Travel Board hearing that the suicide of his friend sent him into a depression that he never really recovered from. He stated that he began using alcohol and drugs to self medicate to cope with his depression. The Veteran's mother and sister testified that he was a changed person when he returned from the military. They testified that prior to military service, the Veteran was stable. Afterwards, he suffered from various drug problems and many other difficulties as a result of his drug problems. The Veteran has consistently contended that his in-service stressors were discovering a friend after he committed suicide and a fire aboard the ship he was serving on. Deck logs from the USS DAVIDSON indicated that the Veteran's friend did commit suicide while the Veteran was serving on that ship. For VA purposes, only one verified stressor is needed. Therefore, the Veteran's stressor has been conceded. Despite the conceded stressor, the June 2009 VA examiner determined that while the Veteran clearly met the requirements for a PTSD diagnosis, his PTSD was not related to his confirmed military stressors, but rather, was more likely the result of post-service stress including being attacked and suffering a gunshot wound. 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. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert, denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet.App. 362, 367 (2001). 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. In weighing lay evidence, the Board must render a finding with regard to both competency and credibility. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006). Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet.App. 67, 74 (1997). The Board notes that laypersons are generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); Charles v. Principi, 16 Vet. App. 370 (2002). As a lay person, the Veteran is not competent to provide evidence as to complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). However, with regard to the Veteran's claim for PTSD, the Board finds there is competent and credible medical evidence that supports the Veteran's claim and it therefore warrants service connection. In this regard, the Board notes that the Veteran has a DSM-IV diagnosis of PTSD, a verified in-service stressor, and evidence that his PTSD is at least in part the result of that verified stressor. Therefore, the Board finds service connection is warranted for PTSD. Under the above circumstances, the Board finds that a preponderance of the evidence is in favor of the veteran's claim of service connection for cold injury residuals. Additionally, the Board has considered the benefit of the doubt rule and determined that the claim must be granted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for PTSD is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs