Citation Nr: 1338033 Decision Date: 11/20/13 Archive Date: 12/06/13 DOCKET NO. 11-25 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric condition to include Posttraumatic Stress Disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL The Veteran, the Veteran's spouse, B. J. C., J. C. ATTORNEY FOR THE BOARD Russell P. Veldenz, Counsel INTRODUCTION The Veteran served on active duty from September 1966 to August 1968. His service includes service in Vietnam and he has been awarded the Purple Heart. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2010 of a Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In February 2012, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. The Veteran filed his claim as a claim for service connection for PTSD. In Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009), the Court held that claims for service connection for PTSD also encompass claims for service connection for all psychiatric disabilities afflicting a Veteran based on a review of the medical evidence. The medical evidence indicates that, in addition to PTSD, the Veteran has been diagnosed with additional psychiatric diagnoses such as depression and adjustment disorder. Thus, the claim of service connection is as stated broadly on the title page of this decision. Following the issuance of the supplemental statement of the case in September 2011, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c). In his substantive appeal, the Veteran appears to raise an issue involving a lung disability which he attributes to Agent Orange exposure. In a statement received by VA in February 2012, the Veteran's wife mentioned that the Veteran had a rash on his legs after returning from Vietnam which resulted in residual scars. In a recent statement, the Veteran stated he has been told he has hot spots in his thyroid, cysts in his kidneys, liver, and colon, and hearing loss and tinnitus. He had attributed these disabilities to service. The issues of entitlement to service connection for a lung disability, service connection for a kidney disability, service connection for a thyroid disability, service connection for a colon disability, service connection for residuals of a skin rash to include scars, service connection for hearing loss, and service connection for tinnitus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT Resolving all doubt in favor of the Veteran, the Veteran has a current diagnosis PTSD that had onset in service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim for service connection for PTSD is resolved in the Veteran's favor, the only matter disposed of in this decision, further discussion here of compliance with the VCAA is not necessary. Principles of Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Generally, to establish service connection on a direct incurrence basis, a Veteran must show: (1) a present disability; (2) an 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. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by showing inception or aggravation during service. 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with VA regulations; 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 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). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat Veterans). Effective July 12, 2010, VA amended its adjudication regulations governing service connection for PTSD by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor. See 38 C.F.R. § 3.304. The Veteran has not been prejudiced by any failure to adjudicate his claim under the recent amendment to 38 C.F.R. § 3.304. His engagement in combat is established by his award of a Purple Heart. The Veteran has stated was one of the events that resulted in his PTSD symptoms was the combat resulting in his injury. Therefore, the combat presumptions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d), (f) apply. 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). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical diagnosis, statement, or opinion. 38 C.F.R. § 3.159. Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). Facts and Analysis At the time the Veteran entered service in September 1966, his examination, including the psychiatric aspect, was normal. The Veteran did answer yes to a history of depression or excessive worry and anxiety. At his separation examination in August 1968, the Veteran's physical examination and history did not include any symptoms or diagnosis of a mental health disorder, In June 2009, the Veteran sought treatment for difficulty sleeping with bad dreams at times. He also felt depressed at times. His wife stated that the Veteran was obsessed with Vietnam by watching movies or reading books and articles. She also said his personality was different than it had been three years ago. On some days, he had no motivation to get up and do stuff. He had crying episodes. The Veteran did not have any suicidal or homicidal ideation. The assessment at this time was depression. In July 2009, the test screen for PTSD was positive. Symptoms for several days were noted to include having little interest or pleasure in doing things, feeling depressed or down, having trouble sleeping, having a poor appetite, and feeling badly about himself. Nearly every day he has trouble concentrating. He did not have any thoughts that he would be better off dead. These problems have made it somewhat difficult to work, do things at home, or get along with other people. The Veteran was provided a VA examination in February 2010. He described his childhood and family life as pretty good. He worked at various jobs after high school until he entered service. He has been married to his wife since 1964 and has two grown children. In service, the Veteran served as a mechanic of armed personnel carriers. Since 1970, he has worked for a car dealership. The Veteran reported symptoms of sleep difficulties, nightmares, and crying often. The Veteran reported several traumatic experiences while serving in Vietnam, including the incident where he was injured and awarded the Purple Heart. For many years, he did not talk about his experiences in Vietnam, however, the thoughts have come back in the form of nightmares, occurring once every 3-4 months. He will talk about his experiences to a co-worker, who also served in Vietnam. Occasionally the conversations become difficult and he will end the conversation. The Veteran denied flashbacks or reliving the experiences although sometimes, about twice a month, when he watches the news, thoughts about Vietnam will come to him. His wife has told him he is more irritable but denies any hyperarousal symptoms. He avoids gas stations with fuel trucks present and he will not fly. He denied panic attacks, anxiety, an exaggerated startle response, or hypervigilance. He is able to be crowds or go to large stores. The Veteran has noticed, however, that he has been depressed and times where he does not want to do anything. He does enjoy driving with his wife, spending time on a computer, and interacting with his family including a grandson. He reported good concentration and pretty good energy. He gets along well with his co-workers. He attributed his depression to his physical health condition, which includes problems such as thrombocytopenia, hypertension, diverticulitis, benign prostate hypertrophy, and benign goiter. The Veteran also reported his physicians had noted spots on his lungs. On examination, the Veteran was alert and oriented. His memory was extremely good. He had good eye contact and was friendly and cooperative. His mood was euthymic with full ranging, congruent, and nonlabile effect. He did not have thoughts of suicide or homicide. He did not have any hallucinations. His thought process was linear, logical, and goal directed. His judgment was appropriate. The VA examiner noted the Veteran had experienced several traumatic events while in Vietnam and now experiences mild avoidance phenomena, some re-experiencing symptoms (nightmares), and perhaps irritability. The VA examiner, however, attributed much of his mental health problems to frustration about his physical health. There were no feelings of traumatic events recurring or intense psychological stress. He does not have significant avoidance phenomena as he could talk about Vietnam on his job and had no trouble recalling important aspects of the trauma. He did not have a sense of foreshortened future or a restricted range of affect. The Veteran had some symptoms of increased arousal such as his sleep difficulties hut no difficulties with concentration, hypervigilance, or exaggerated startle response. The examiner also noted the symptoms did not cause clinically significant distress or impairment of social or occupational functioning. He gets along with co-workers and family. He functions well at work and has not lost any time due to mental illness. The diagnosis was adjustment disorder with mixed anxiety and depressed mood with a GAF score of 70. He had concerns about his health and concerns about Agent Orange exposure. The examiner therefore concluded that the Veteran did not meet the full criteria for a PTSD diagnosis and the adjustment disorder is not related to service. In March 2010, the Veteran's problem list at VA included both depression and PTSD. In March 2011, the Veteran's wife reported that he had depression and that he sits around weekends in his robe. In April 2011, the Veteran reported he still worked full time but was not reporting nightmares or social isolation. He had no hallucinations. He was described as quiet. In June 2011, the Veteran submitted a statement in which he noted that when he returned from Vietnam, he had tried to forget it, but now it was on his mind every day. The Veteran's sister-in- law, S.M., submitted a statement to VA indicating that the Veteran now does not want to talk as much as he did a few years ago, and that sometimes does not want to talk at all. In the past year and half, he has become obsessed with Vietnam through movies and the internet. He has tried to locate people he served with. Unless the subject is about the war, he remains silent. S. M. also noticed the Veteran has trouble recalling everyday life events, but did not have such trouble recalling things about his service. She also noticed he has completely shut down at times when he comes under pressure; and that this has caused him to make mistakes and bad decisions. A co-worker, P. M., has noticed problems with depression and nerves, although the Veteran does not say much about it. The Veteran's daughter, K. M., reported her father was now angry all the time and will not talk much. He also does not like to go to places or work like he did before. She also stated he sits on the couch all the time and is sad. His son, J. H., states the Veteran now does not like to go to places where there are crowds such as drag races and ball games. He also does not enjoy work or helping the son work on his auto. His brother- in law has also noted that in the past, the Veteran had been outgoing and enjoyed various activities. He noted that now, the Veteran is withdrawn and does not want to go anywhere or have any desire to do much of anything. The Veteran's wife has submitted a statement and testified that the Veteran once was outgoing and helpful around the house, but about three years ago, he changed and now refused to talk about Vietnam. He keeps his emotions inside and no longer enjoys activities. In February 2012, a private medical provider, Dr. D. B. Bennett noted the Veteran experiences anxiety, flashbacks, nightmares/night terrors, insomnia, and chronic depression. Dr. Bennett diagnosed PTSD and depression, and noted that depression was more likely to be caused by the Veteran's Vietnam experiences than any other cause. In a separate letter also dated in February 2012, Dr. Bennett added the Veteran now experienced auditory and visual hallucinations of men who were killed in Vietnam. Dr. Bennett revised the GAF score from 48 to 35. The record shows that the Veteran has a current diagnosis of PTSD, as confirmed by the report of his treating physician Dr. Bennett. Dr. Bennett did not specifically discuss how the diagnosis of PTSD was made in accordance with the criteria of the DSM-IV for PTSD. 38 C.F.R. §§ 3.304 (f), 4.125. In Cohen v. Brown, 10 Vet. App. 128, 140 (1997), the Court held that "[m]ental health professionals are experts and are presumed to know the DSM requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." As such, "a clear (that is, unequivocal) PTSD diagnosis by a mental-health professional must be presumed (unless evidence shows to the contrary) to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor." Id. Accordingly, the Board has no reason to question the validity of the PTSD diagnosis made by Dr. Bennett. Further, the medical records, testimony and statements from the Veteran reveal symptoms of social withdrawal, depression, sleep disturbance, concentration difficulties, anxiety, loss of interest, irritability, and re-experiencing the traumatic events in Vietnam such as nightmares. The Veteran is competent to report such symptoms he personally experienced or observed and when they began. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). The Board finds the Veteran and the other lay witnesses not only competent, but credible in describing his psychiatric symptoms such as depression, anxiety, and social withdrawal. While the Board recognizes that the 2010 VA examiner concluded the Veteran did not have PTSD or any other psychiatric disorder, Dr. Bennett has subsequently diagnosed PTSD and attributed this condition to the Veteran's service in Vietnam. In addition, many of the PTSD symptoms noted to be absent by the VA examiner have been subsequently established as discussed above. Under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). Essentially, while the Board could undertake further development to find another opinion as to the likelihood that diagnosed PTSD is related to the Veteran's period of service, in this case such development would not be necessary. In fact, to do so in this case would arguably serve the purpose of seeking to obtain negative evidence. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003) (noting that VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant). The Board finds that the evidence of record is at least in equipoise as to the matter of whether the Veteran's current psychiatric disorder, PTSD, is related to military service. The benefit of the doubt rule applies and is resolved in the Veteran's favor. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). As there is a reasonable doubt, which is resolved in the Veteran's favor, 38 C.F.R. § 3.102, all three elements of service connection are satisfied, and the benefit sought on appeal is granted. Here, the stressor of trauma in service is established by the Veteran's award of the Purple Heart. The Veteran has a current diagnosis of PTSD, which has been found by his private treating mental health provider to be the result of the in-service traumatic events as described. The medical records, the statements and testimony of the Veteran are considered clear and credible evidence of behavioral changes to establish the existence of a current PTSD disability. All of the criteria for the award of service connection for PTSD as a result of combat trauma in service have been met. Therefore, service connection is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. [Continued on following page.] ORDER Entitlement to service connection for an acquired psychiatric disability to include PTSD is granted, subject to the laws and provisions governing the award of monetary benefits. ____________________________________________ DENNIS F. CHIAPPETTA, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs