Citation Nr: 1336407 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-33 640 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and/or major depressive disorder. REPRESENTATION Veteran represented by: John Blair, Esq. ATTORNEY FOR THE BOARD Shana Z. Siesser, Counsel INTRODUCTION The Veteran had active service from March 1971 to January 1976. These claims come before the Board of Veterans' Appeals (Board) on appeal of June 2003 and January 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Huntington, West Virginia. During the course of this appeal, the Veteran relocated first to Virginia and his servicing RO became Roanoke, VA and then to Florida and his servicing RO became St. Petersburg, FL. In a VA Form 9 (Appeal to Board of Veterans' Appeals) and written statements dated in October 2005 and March 2009, the Veteran requested a hearing before the Board at the RO. The RO acknowledged these requests and informed the Veteran of the date of the scheduled hearing by letters dated in June and December 2009. On the date of the scheduled hearing, however, the Veteran failed to report. Given that he did not request a timely postponement of the hearing, the Board deems his hearing request withdrawn pursuant to 38 C.F.R. § 20.702(d) (2012). The characterization of the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder has changed during the pendency of this appeal. The medical evidence of record indicates that the Veteran's mental health disorders have been classified as major depressive disorder and PTSD. Thus, the Board expanded his claim to encompass all acquired psychiatric disabilities, and has recharacterized the issues on appeal to be the two set forth on the title page. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). A review of the Veteran's electronic claims file (including Virtual VA and Veterans Benefits Management System (VBMS) reveals no additional records. FINDINGS OF FACT 1. The Veteran has diagnoses of PTSD and major depressive disorder during the pendency of this appeal. 2. The Veteran's stressor is related to a fear of hostile military or terrorist activity and a VA psychologist has found it to be adequate to cause PTSD. 3. With resolution of the doubt in favor of the Veteran, his stressor is consistent with the circumstances of his service. 4. The Veteran's acquired psychiatric disorders are related to his period of service. CONCLUSION OF LAW An acquired psychiatric disorder was incurred as a result of service. 38 U.S.C.A. §§ 1101, 1103, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304(f), 3.326 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159 and 3.326(a). In light of the Board's favorable decision on the Veteran's claim, the Board finds that all notification and development action needed to fairly adjudicate this appeal have been accomplished. Merits of the claim Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. Service connection may also 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). In order to establish entitlement to service connection for a disability, the 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. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection for PTSD requires medical evidence diagnosing the condition; 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. 38 C.F.R. § 3.304(f). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (1994). If it is established through military citation or other supportive evidence 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 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. 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); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the Veteran engaged in combat). To gain the benefit of a relaxed standard for proof of service incurrence of an injury or disease, 38 U.S.C.A. § 1154(b) requires that the Veteran have actually participated in combat with the enemy. See VAOPGCPREC 12-99. If VA determines either that the Veteran did not engage in combat with the enemy or that the Veteran did engage in combat, but that the alleged stressor is not combat related, the Veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the Veteran's testimony or statements. 38 C.F.R. § 3.304(f); Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007); Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, corroboration of every detail of a claimed stressor, including the Veteran's personal participation, is not required; rather, a Veteran only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure. See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (quoting Suozzi v. Brown, 10 Vet. App. 307 (1997)). In other words, the Veteran's presence with the unit at the time such attacks occurred corroborates his statement that he experienced such attacks personally. Suozzi, 10 Vet. App. at 311. Effective July 13, 2010, if a stressor claimed by a Veteran is related to that 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 PTSD and that a 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 that Veteran's service, a Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2012). "[F]ear 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 id. A Veteran must have experienced, witnessed, or have been confronted by an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of that Veteran or others, and that Veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. The occurrence of an actual event or circumstance is necessary. In making this determination, VA must duly consider the places, types, and circumstances of a Veteran's service as shown by the service record, the official history of each organization in which such a Veteran served, a Veteran's medical records, and all pertinent medical and lay evidence. The new rule is limited to cases in which the claimed stressor is related to a Veteran's fear of hostile military or terrorist activity. See 75 Fed. Reg. 39843 (Jul. 13, 2010). The final requirement of 38 C.F.R. § 3.304(f) is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence generally cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to service connection for an acquired psychiatric disorder. Factual background The Veteran's service treatment records contain no evidence of complaints of treatment for a psychiatric disorder. In a December 1975 report of medical history, the Veteran denied depression or excessive worry and nervous trouble of any sort. The separation examination showed a normal clinical psychiatric evaluation. The Veteran filed a claim of service connection in December 2002, stating that severe depression, nervousness, sleep deprivation, nightmares, an inability to concentrate, paranoia, and a quick temper began in September 2000. He also stated that his PTSD began in January 1975. Post-service treatment records from 2000 through 2013 showing multiple diagnoses of PTSD and major depressive disorder. A January 2001 psychiatric evaluation shows the Veteran was diagnosed with moderately severe major depression and moderately severe generalized anxiety disorder. The psychiatrist noted the Veteran's service and that he had nightmares about his military experience. The Veteran reported that he had suicidal and homicidal thoughts, depression, sleep deprivation, nightmares, and an uncontrollable temper. He also stated that he was too ashamed to seek treatment upon his discharge from service. A February 2003 report from the Princeton Vet Center shows that the Veteran was diagnosed with PTSD, chronic/severe with dissociation, generalized anxiety disorder, and major depression, recurrent. The Veteran's symptoms included insomnia, bad dreams, hypervigilance, impaired impulse control, panic attacks, angry outbursts, pervasive feelings of helplessness, hopelessness, guilt, and worthlessness, flashbacks, and recollections of trauma. The Veteran underwent a VA PTSD examination in April 2003. The examiner diagnosed "major active illness, depression, alcohol abuse by history." The examiner opined that the Veteran has recurrent depression and anxiety which appears to be of moderate extent. He also noted that the Veteran has episodes of anxiety and depression and some thoughts about the incidents that happened in Thailand. No opinion was offered as to the etiology of his anxiety and depression. In a February 2004 statement by the Veteran's psychologist, the Veteran was diagnosed with PTSD, parent/child problem and partner relational problem. The psychologist noted that the Veteran experienced several traumas, including one in the military where he witnessed the violent death of others, dismemberment, and a threat to his own safety. A Vet Center clinical update report dated in March 2005 stated that the Veteran continued to present with chronic and severe PTSD symptoms and that the Veteran's PTSD occurred as a direct result of traumatic events he experienced while serving in Thailand, during the Vietnam war. A June 2005 letter from the Veteran's psychologist, W.B., M.A., revealed that the Veteran is diagnosed with PTSD and had periodic significant symptoms of depression. Mr. B. stated that the Veteran shows a pattern of rigid compulsive behavior that is often present in PTSD sufferers from the Vietnam conflict. Vet Center records from February 2006 show a diagnosis of PTSD due to in-service stressors. In February 2008, the Veteran was admitted to a six week in-patient intensive PTSD program. The record noted that the Veteran continue to experience severe and chronic PTSD. In November 2008, the Veteran again admitted to an in-patient PTSD program for four weeks. The records show continued treated for PTSD from 2008 through 2013 with repeated diagnoses of PTSD and depression. The Veteran underwent a VA examination in June 2013. The examiner diagnosed the Veteran with major depressive disorder and declined to offer a diagnosis of PTSD, stating that the Veteran did not meet all the criteria. With regard to the etiology of the Veteran's depression, the examiner opined that he could not say without resort to speculation, that the cause of the Veteran's depression is his reported combat in Thailand because there are too many intervening variables. Analysis The Board finds that with resolution of the doubt in favor of the Veteran, service connection is warranted for an acquired psychiatric disorder. With regard to the first requirement for service connection, the presence of a current disability, although the June 2013 VA examiner found the Veteran did not have a diagnosis of PTSD, the Board finds the extensive treatment records to be sufficient to find that he has had diagnoses of both PTSD and depression during the pendency of this appeal. With regard to the third prong, a causal relationship, the Board finds that the Veteran's psychiatric disorders, including his depression and PTSD, are related to service. Although the June 2013 VA examiner was unable to relate the Veteran's depression to service without resorting to speculation, he was also unable to offer a negative opinion with a rationale that would weigh against the Veteran's claim. The examiner's opinion is not probative in this regard. Conversely, the Veteran has presented multiple treatment records which relate his psychiatric disorders to his military service. Therefore, the Board finds a causal relationship between the Veteran's military service and his current psychiatric diagnosis. With regard to second prong, an in-service incident, or in this case the Veteran's stressor for his PTSD claim, the Veteran has alleged that in 1972, he was caught in a firefight at Udorn, A.F.B. in Thailand. He stated that the V.C. overran the perimeter and the V.C. had satchel charges taped to his body. The V.C. was shot around 25 yards in front of the Veteran and exploded. His head landed 8-10 feet from where the Veteran had taken cover. The Board recognizes the extensive efforts that have been undertaken to verify the Veteran's stressor. Although verification of the stressor was no longer necessary pursuant to the revised 38 C.F.R. § 3.304(f), in this case, the stressful event itself has been verified. The record contains documentation of an attack on Udorn A.F.B. in October 1972, consistent with the Veteran's account. The question that remains is whether the Veteran was present during the time of the attack and if the stressor is consistent with the places, types, and circumstances of that Veteran's service. The Veteran's service records show that a temporary duty (TDY) order authorized the Veteran to be in Thailand beginning in June or July 1972 for a period of 45 days or longer. The record also contains a treatment record showing the Veteran was treated in Thailand in July 1972. The TDY order also showed that the Veteran was approved to stay in Thailand through Fiscal Year (FY) 1973. Despite numerous efforts by VA, there are no military records which can prove or disprove the Veteran's presence at the Udorn A.F.B. attack in October 1973. The Veteran was presented with a Vietnam Service Medal with Bronze Star as well as a Republic of Vietnam Gallantry Cross Medal with Palm Ribbon. The Veteran contends that these medals were awarded due to his presence in a combat situation. The Veteran further claims that he gave his detailed account of the October 1972 attack years prior to reading the September 2005 official report of the attack by the Department of Army. Given the totality of the evidence, specifically to include absence of any evidence against the Veteran's claim and the extensive treatment records relating the Veteran's psychiatric diagnoses to his military service, and resolving all reasonable doubt in the Veteran's favor, the Board finds that his service was consistent with the circumstances of the Udorn attack. Therefore, the criteria for service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder have been met and the Veteran's claim is granted. (CONTINUED ON THE NEXT PAGE) ORDER Service connection for an acquired psychiatric disorder is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs