Citation Nr: 1338532 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 10-16 686 ) 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 disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The Veteran had active service from May 1967 to December 1968 and from September 1971 to August 1973. The Veteran served in Vietnam from November 1967 to December 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, which reopened and denied a claim of entitlement to service connection for PTSD. In March 2012, the Board Remanded the claim to the Appeals Management Center (AMC). In December 2010, a Videoconference hearing was convened before the undersigned Veterans Law Judge. The transcript of this hearing has been associated with the claims file. FINDING OF FACT The evidence of record is in equipoise to show that the Veteran has an acquired psychiatric disorder, to include PTSD, which is etiologically related to active duty service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that he is entitled to service connection for PTSD, or for a psychiatric disorder related to traumatic incidents experienced in service, to include combat. As the decision below is ultimately favorable to the Veteran, further discussion of VA's duties to notify and assist the Veteran is not required. The veteran's service treatment records are associated with the claims file. The Veteran has been afforded three VA examinations. The Veteran's VA outpatient treatment records through July 2012 are associated with the claims file. The VA inpatient and outpatient treatment records in the file, together with outpatient treatment records in the Veteran's VA electronic (Virtual VA) records, total more than 500 pages of non-duplicative VA outpatient treatment records. The Veteran has indicated that he stopped working on the basis of age. He has not reported that he applied for Social Security Administration (SSA) benefits or other benefits on the basis of disability. No additional governmental or disability records are available. Law and regulations applicable to a claim for service connection Service connection may be granted for a disability due to a disease or injury which was incurred in or aggravated by active duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing direct service connection for PTSD requires (1) medical evidence diagnosing the condition in conformity with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (1994) (DSM-IV), (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by medical evidence, between the current symptomatology and the established in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The credible supporting evidence necessary to establish the occurrence of a claimed in-service stressor varies depending upon whether the Veteran engaged in combat with the enemy. A Veteran engaged in combat with the enemy if he "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99 (October 18, 1999), 65 Fed. Reg. 6257 (2000); see also Sizemore v. Principi, 18 Vet. App. 264 (2004). Combat determinations are made on a case-by-case basis. Id. A veteran is competent to testify as to a condition within his knowledge and personal observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Bruce v. West, 11 Vet. App. 405, 410-11 (1998) (finding veteran competent to describe dry, itchy, scaling skin); but see Layno v. Brown, 6 Vet. App. 465 (1994) (cautioning that lay testimony that veteran suffered a particular illness (bronchial asthma) was not competent evidence because matter required medical expertise); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (competent testimony "can be rejected only if found to be mistaken or otherwise deemed not credible). Facts and analysis In its March 2012 Decision, the Board reopened the Veteran's claim for service connection for PTSD and directed the AOJ to conduct development directed to three aspects of the case. First, the Board directed that the Veteran be provided additional notice regarding the revised criteria for service connection for PTSD. The Veteran was afforded this information in a March 2012 notice. Second, further information was to be developed to resolve the conflicting evidence as to whether the Veteran received the Army Commendation Medal or the Army Commendation Medal with V Device. An award with a V Device denotes combat. The AMC determined that the Veteran's award of the Army Commendation Medal was with a V Device, and determined that the Veteran's participation in combat was conceded. The Board agrees with this finding. In this regard, the Board notes that in the case of a veteran who engaged in combat with the enemy in a period of war, lay evidence of in-service incurrence or aggravation of a disease or injury shall be accepted if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the lack of official record of such incurrence or aggravation. See 38 U.S.C.A. § 1154(b); Libertine v. Brown, 9 Vet. App. 521, 524 (1996); Collette v. Brown, 82 F.3d 389, 392-94 (Fed. Cir. 1996). The standard used to determine whether a veteran engaged in combat with the enemy is reasonable doubt, which is to be resolved in a veteran's favor. See VAOPGCPREC 12-99. The provisions of 38 U.S.C.A. § 1154(b), however, can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, not to link the claimed disorder etiologically to a current disorder. See Libertine, 9 Vet. App. at 522-23. The provisions of 38 U.S.C.A. § 1154(b) do not establish service connection for a combat veteran; it aids a veteran by relaxing the adjudicative evidentiary requirements for determining what happened in service. Clyburn v. West, 12 Vet. App. 296, 303 (1999). In this case, the Veteran's recommendation for an Army Commendation Medal with V Device sets forth the circumstances of the Veteran's participation in combat on one occasion during his tour in Vietnam, in December 1967. The Veteran's tour in Vietnam, which began in November 1967, lasted slightly more than one year. Given the Veteran's military occupational specialty as canoneer, it is unlikely that the combat situation which resulted in his recommendation for the Army Commendation Medal with V Device was his only exposure to combat. The Board notes that the incidents the Veteran reported as his stressors include the death of a fellow soldier in a friendly fire incident, seeing civilians who were undergoing the stresses of war, killing civilians, and the like. The Board finds that these stressors are credible. Third, the Board directed that the Veteran be afforded another VA examination. The Veteran was afforded VA examinations in August 2009 and April 2010. The same examiner conducted each of those examinations, and concluded that the Veteran did not meet the criteria for a diagnosis of PTSD. At the time of the 2009 VA examination, the examiner noted that the Veteran did not display emotional upset when discussing traumatic events during his service. In August 2009, the examiner opined that the Veteran's discussion of stressor events and symptomatology without emotion was inconsistent with a diagnosis of PTSD. The examiner assigned a GAF score of 70. As noted in the Board's Remand, the examiner did not address the Veteran's VA outpatient mental health records. In April 2010, the examiner again found the Veteran cooperative, with good eye contact, normal speech patterns, and appropriate affect. The examiner noted that the Veteran had been assigned a diagnosis of PTSD by a VA provider, but stated that "no evidence" from the VA examination supported that diagnosis. The examiner noted that the Veteran "clearly has excellent memory and recall of events that occurred while he was in Vietnam." The examiner further noted that "there was no evidence whatsoever that these recollections were traumatic, persistent, or painfully experienced by the Veteran." The examiner further noted that he Veteran did not demonstrate any physiologic reactivity or . . . psychological distress" when discussing his experiences in Vietnam. The examiner stated that it was not meaningful to address the frequency, severity or during of the Veteran's symptoms, as there was no evidence of PTSD or other psychiatric impairment. VA outpatient treatment records reflect that the Veteran continued to be seen by his treating VA mental health providers. GAF scores varying from 45, in July 2010, to 41 in December 2010, were assigned. During his December 2010 hearing before the Board, the Veteran testified that he did not believe that the examiner who conducted the VA examinations in 2009 and 2010 provided a detailed examination. VA mental health records show that the Veteran has been receiving care for several years that is supervised by a psychiatrist for diagnosed psychiatric disorders such as PTSD, which have been related to credible in-service stressors. In December 2010, the VA licensed clinical social worker, who is under the supervision of the Veteran's treating VA psychiatrist, and has been treating the Veteran for depression and PTSD, provided an opinion that the Veteran did meet the criteria for a diagnosis of PTSD, and that the Veteran dealt with the symptoms of PTSD through numbing of general responsiveness. The written opinion explained that the Veteran was devoid of the full range of emotions other than anxiety, so that he was able to talk about traumatic events without showing any emotion other than anxiety. The diagnosis by the treating VA psychiatrist was addressed, noting that the treating psychiatrist who initially assigned the diagnosis of PTSD was a Board-certified psychiatrist who practiced both in the VA system and in private practice. The opinion further noted that each of the VA psychiatrists who treated the Veteran when the primary treating psychiatrist was not available had endorsed the assignment of the diagnosis of PTSD. VA outpatient treatment records dated in January 2012 reflect that the treating psychiatrist assigned a GAF score of 41. At that time, the provider noted that the Veteran's mood was anxious, his affect was slightly restricted, he continued to have financial problems, and he reported jumpiness following fireworks that were shot off for New Year's Day, among other symptoms. VA outpatient treatment records dated through July 2012 reflect that the Veteran continues to receive VA treatment for psychiatric disorders. In order to resolve the conflicting evidence, the Board directed that the Veteran be afforded a VA examination by a different examiner. In June 2012, the Veteran was afforded VA examination by a different examiner. The examiner concluded that the Veteran did not have PTSD or any other psychiatric disorder conforming to the DSM-IV criteria. The examiner noted that the Veteran described different stressors during the 2012 VA examination than he had previously described. The examiner opined that the Veteran did not persistently reexperience a traumatic event, did not persistent avoid stimuli associated with the trauma, and was unable to provide any details about reported symptoms such as flashbacks, triggers for symptoms, or intrusive thoughts. The examiner provided a July 2012 addendum in which the examiner stated that the report of VA examination was unchanged after review of the claims files and VA outpatient treatment records. The medical opinions rendered by the two examiners who conducted the three VA PTSD examinations during the pendency of this appeal are very different than the opinions rendered by the three treating VA providers. Both examiners who conducted the VA psychiatric examinations determined that the Veteran did not meet the DSM-IV criteria for PTSD or any other disorder. One examiner assigned a Global Assessment of Functioning (GAF) score of 70. The examiners noted that PTSD and other diagnoses had been assigned, but, the examiners concluded, those diagnoses were not supported by visible behavior of the Veteran during the VA examinations. In contrast, the treating VA providers, which include psychiatrists, have assigned diagnoses of PTSD and depression. The treating providers have described visible behaviors of the Veteran that meet the criteria for the assigned diagnoses of PTSD and depression. The GAF scores assigned by the treating providers during the pendency of this claim have varied from 41 to 45, a very different assessment than the GAF score of 70 assigned on VA examination. Neither the treating providers nor the examiners who conducted VA examinations conducted psychometric testing, so there is no objective assessment of the observations provided by the treating providers or by the examiners. In the December 2010 written opinion set forth at length the qualifications of the treating providers and the reasoning underlying the belief by the Veterans treating mental health providers that the diagnosis of PTSD was accurate. The Board finds this statement persuasive evidence favorable to the Veteran's claim. Assessment of the Veteran's credibility must consider the fact that the Veteran began seeking regular treatment for PTSD in September 2009. VA providers assigned diagnoses of depression or PTSD as early as 2005. See October 2005 VA outpatient treatment note. When the Veteran returned for treatment in September 2009, the Veteran advised the provider that he was willing to seek treatment because the examiner who conducted the August 2009 VA examination told him that there was not enough evidence that he had PTSD without treatment. See September 2005 VA outpatient treatment notes. The Board concludes that the fact that the Veteran did not seek treatment for PTSD until he felt he was required to do so in order to provide evidence for his claim tends to reduce his credibility. The examiners who conducted the VA examinations also questioned the Veteran's credibility, including changes in stressors described at various times. However, the treating VA mental health provides opined that the Veteran's demeanor and changes in descriptions of his stressors were, in fact, consistent with the Veteran's PTSD and the mechanisms he used for coping with his symptoms. This included the Veteran's overall functioning several times in the treatment notes. Description and consideration of the Veteran's struggles with daily living, including social isolation, such as a lack of contact with his children and his siblings. All of the factors described tend to support the treating providers' observations of the Veteran rather than the observations of the VA examiners, who provided little discussion of the Veteran's overall functioning. The evidence is essentially in equipoise. The evidence clearly reflects that the Veteran was exposed to combat stressors and hostile activity during much of his tour in Vietnam, which lasted in excess of one year. The Board finds that the treatment comments and opinions from a variety of mental health providers who have treated the Veteran over the course of the appeal period are more persuasive than the reports of the three VA examinations. Resolving reasonable doubt in the Veteran's favor, the Board finds that the claim may be granted. ORDER The appeal for service connection for PTSD is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs