Citation Nr: 1338448 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-29 910 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Hartford, Connecticut THE ISSUE Entitlement to service connection for a psychiatric disorder, to include post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Connecticut Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. D. Regan, Counsel INTRODUCTION The Veteran served on active duty from April 1968 to November 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in February 2009 and October 2009 of a Department of Veterans Affairs (VA) Regional Office (RO). The February 2009 RO decision denied service connection for PTSD. The October 2009 RO decision denied service connection for a psychiatric disorder (listed as a depressive disorder, not otherwise specified). By this decision, the RO also continued the denial of service connection for PTSD. In October 2012, the Veteran appeared at a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the Veteran's claims file. FINDING OF FACT The Veteran's psychiatric disorder, to include PTSD, had its onset in service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, to include PTSD, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R §§ 3.102, 3.303, 3.304(f) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The Board is granting in full the benefit sought on appeal as to the issue of entitlement to service connection for a psychiatric disorder, to include PTSD. Accordingly, any error committed with respect to either the duty to notify or the duty to assist was harmless and will not be further discussed. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for a "chronic disease," such as psychoses, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). 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) (2012). Prior to July 13, 2010, a claimed non-combat stressor must have been established by official service record or other credible supporting evidence - the appellant's uncorroborated assertions were not sufficient to corroborate a non-combat stressor. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). However, effective July 13, 2010, 38 C.F.R. §3.304(f) was amended to add a new paragraph, §3.304(f)(3), which provides that if a stressor claimed by a Veteran is related to the 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 the 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 the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. The Veteran essentially asserts that he was exposed to the type of stressor (hostile military or terrorist activity) contemplated by the regulatory amendments. Accordingly, the Board finds that the amendments to 38 C.F.R. § 3.304(f) are applicable in this case. The Veteran contends, essentially, that he has a psychiatric disorder, to include PTSD, that is related to, or had its onset in service. He specifically maintains that he has suffered from psychiatric problems since his period of service. He indicates that he remembers being severely depressed after he came back from an R&R leave in Japan. He further states that he began seeing a psychiatrist after service in 1970. The Veteran also specifically asserts service connection for PTSD based on reported stressors during his service in Vietnam. He served on active duty from April 1968 to November 1969. His service personnel records do not show that he was awarded decorations evidencing combat. Such records do show that the Veteran served in Vietnam from November 1968 to November 1969 as a radio relay operator, and that he participated in Operation Taylor Common and Operation Dawson River. The Veteran's service treatment records do not show treatment for any psychiatric problems including PTSD. The Veteran has reported various stressors. For example, a November 2008 VA psychiatric evaluation report noted that the Veteran reported that he served with the 1st Marine Air Wing in Da Nang, Vietnam. He indicated that on his first day in Da Nang in November 1968, there were small arms flashes visible out the window. He stated that the next morning, there were incoming mortars and rockets and he was told to go to a bunker. The Veteran also indicated that he was required to do radio checks three times a day and that he was exposed to small arms fire, rockets, and mortars on sporadic occasions. He stated that there were some really close calls. He also referred to any ammunition dump blowing up. The Veteran indicated that the concussion from the explosion knocked him down. In a March 2009 stressor statement, the Veteran reported that in February 1969, while serving with the 1st Marine Air Wing in Da Nang, Vietnam, he was performing duty in the mess hall when the Vietcong started walking rockets up from the south end of an airstrip. He stated that he dove for cover in the mess hall and that his heart was pounding. The Veteran also reported that in March 1969, he was awakened by the sound of rockets going off in the distance. He indicated that one of the rockets hit a building just a few hundred feet away from his location and that four soldiers were wounded. He related that shrapnel hit the building where he was located. The Veteran further indicated that an ammunition dump burned in April 1969. In a June 2009 memorandum, the U.S. Army and Joint Services Records Research Center (JSRRC) coordinator at the RO indicated that the Veteran's personnel records showed that he served in Vietnam with the 1st Marine Air Wing as a Radio Operator. It was noted that the Veteran described an incident when he was in a mess hall in Da Nang, Vietnam and the Vietcong started walking rockets up from south end of an airstrip. The Veteran reported that the he dove for cover and one of the rockets landed in proximity to where he was hiding. The JSRRC coordinator also stated that the Veteran described another incident where he was awakened by the sound of rockets going off and that the rockets hit the building just a few hundred feet away, wounding four soldiers. The JSRRC coordinator reported that the Veteran's personnel records confirmed that he participated in Operation Taylor Common and Operation Dawson River. It was noted that Operation Taylor Common took place from February 12, 1969 to February 17, 1969, which was the same time period during which the Veteran reported that the first incident occurred. The JSRRC coordinator concluded that the events that took place, as reported by the Veteran, were consistent with the circumstances, conditions, and/or hardships of such service even though there were no official records of the occurrence. The JSRRC coordinator concluded that the Veteran's stressors were verified. Therefore, the Board finds that the stressors reported by the Veteran are the type contemplated by 38 C.F.R. § 3.304(f)(3). Accordingly, the Veteran's lay testimony is sufficient to establish the occurrence of his stressors. The Board must next consider whether a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, has confirmed that the claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressors. January 1973, February 1973, and November 1973 billing statements from V. Coric, M.D., indicate that the Veteran was charged for psychotherapy on those respective dates. A November 2008 VA psychiatric evaluation report noted that the Veteran reported that on his first day in Da Nang, Vietnam, there were small arms flashes visible out the window and that on the next morning, there were incoming mortars and rockets. The Veteran also indicated that he was required to do radio checks three times a day, and that he was exposed to small arms fire, rockets, and mortars on sporadic occasions. He also referred to any ammunition dump blowing up. The diagnosis was PTSD, chronic, and moderate. The VA psychiatric evaluation report was signed by a VA team leader, two social workers, and a VA psychologist. An August 2009 VA psychiatric examination report included a notation that the Veteran's claim file was reviewed. The examiner discussed the Veteran's medical history in some detail. The examiner also referred to the Veteran's (March 2009) stressor statement and his reports of rockets hitting an air strip where he was stationed and an ammunition dump blowing up. It was noted that the Veteran also reported that he had a long history of mental health treatment, including initial treatment in 1970 with Dr. Coric. The diagnoses were a depressive disorder, not otherwise specified, and rule out seasonal affective disorder. The examiner reported that the Veteran presented with limited trauma exposure while in the Marine Corps in Vietnam. The examiner stated that the Veteran's description of his history and presenting complaints did not support the assertion that he had ever had significant re-experiencing symptoms of those events. It was noted that the Veteran had undergone extensive treatment over the years and that he had never raised such a history as an issue to address in therapy. The examiner indicated that the evidence did not support the assertion that it was trauma-related avoidance that had caused the Veteran's symptoms as his distress and apparent level of actual trauma exposure were limited. The examiner reported that the Veteran presented with very isolated reactivity to reminders with little distress, and an ability to manage the distress adequately. The examiner maintained that although the Veteran did present with a history of recurrent depressive symptoms, along with social isolation and some anxiety-type symptoms, to attribute hose symptoms to his Vietnam experiences in the context of low trauma exposure and minimal or absent re-experiencing symptoms would be a false imputation of causation. The examiner further reported that the Veteran did seek treatment for depression in 1970, which coincided with his time in the military. The examiner stated that records from more recent outpatient providers would be useful as an adjunct to the assessment. There is another August 2009 VA psychiatric examination report of record that is essentially a duplicate of the above examination. However, in that examination report, after noting that the Veteran did seek treatment for depression in 1970, which coincided with his time in the military, the examiner specifically stated that thus, it was at least as likely as not that his depressive disorder dated its onset to his active military time. An August 2010 VA psychiatric evaluation report noted that the Veteran reported that on his first day in Da Nang, Vietnam, there were small arms flashes visible out the window. He stated that the next morning there were incoming mortars and rockets. The Veteran also indicated that he was required to do radio checks three times a day, and that he was exposed to small arms fire, rockets, and mortars on sporadic occasions. He further stated that there were some really close calls, and referred to any ammunition dump blowing up. The diagnosis was PTSD, chronic and moderate. The VA psychiatric evaluation report was signed by a VA team leader, two social workers, and two VA psychologists. A May 2011 VA psychiatric examination report noted that the Veteran's claim file was reviewed. The examiner stated that the Veteran did report a traumatic event during his military service while he was stationed in Vietnam. It was noted that the indicated that while he was walking to get mail one night and there were rockets overhead and he had to lie in the dirt until it was over. The impression was depressive disorder, not otherwise specified (currently in partial remission), and schizoid personality traits. The examiner commented the Veteran's psychiatric conditions were not caused by or the direct result of the Veteran's military experience. The record supports a finding of a diagnosis of PTSD based upon the Veteran's confirmed stressors. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals are experts and are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis). VA psychiatric evaluation reports (performed by VA psychologists) dated in November 2008 and August 2010 specifically discuss the Veteran's verified stressors and relate diagnoses of PTSD. Because the Veteran's PTSD diagnosis was based, at least in part, on corroborated stressors, the Board finds that the weight of the evidence demonstrates that the Veteran's PTSD is due to a corroborated stressor event during his service. Therefore, the Board finds that service connection for PTSD is warranted. The Board must also consider whether service connection for any other psychiatric disorder is warranted. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). There are conflicting opinions of record regarding whether a psychiatric disorder, other than PTSD, is related to the Veteran's period of service. An August 2009 VA examination report indicated diagnoses of a depressive disorder, not otherwise specified, and rule out seasonal affective disorder. The examiner initially stated that it was at least as likely as not that the Veteran's depressive disorder dated its onset to his active military time. A duplicate of that examination report that is of record, however, does not include that statement by the examiner. A subsequent May 2011 VA psychiatric examination report indicated an impression of a depressive disorder, not otherwise specified (currently in partial remission), and schizoid personality traits, and the examiner stated the Veteran's psychiatric conditions were not caused by or the direct result of the Veteran's military experience. The examiner did not provide any rationale for such opinion and the Board finds the May 2011 VA psychiatric examination report is not probative in this matter. The Veteran is competent to report psychiatric symptoms in service, continuous psychiatric symptomatology since service, and current symptoms that form the basis for diagnosis of a disability, and the Board finds that the Veteran's account of in-service occurrence and continuity of symptoms to be credible and uncontested. See Jandreau v. Nicholson, 492 F.3d 1372 (2007). The Veteran specifically reported psychiatric problems in service and he has current psychiatric diagnoses, to include a depressive disorder, as well as PTSD. A VA examiner, in August 2009, initially related a psychiatric disorder (depressive disorder) to the Veteran's period of service. Resolving any doubt in the Veteran's favor, the Board finds that Veteran has a psychiatric disorder, to include PTSD, that had its onset during his period service. Accordingly, service connection is warranted. ORDER Service connection for a psychiatric disorder, to include PTSD, is granted. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs