Citation Nr: 1338819 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 08-05 259 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for an acquired psychiatric disability to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Appellant represented by: Mark F. Parise, Attorney at Law ATTORNEY FOR THE BOARD M. Prem, Counsel INTRODUCTION The Veteran, served on active duty from August 1962 to September 1965. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota, which declined to reopen the claim of service connection for PTSD. This case was previously before the Board in March 2010, when the claim was reopened and remanded for further development. In October 2011, the claim was remanded to allow for a hearing. In March 2012 it was remanded for further development, to include an additional opinion by a VA examiner. In April 2013, it was remanded for further development, to include compliance with the March 2012 remand instructions. FINDING OF FACT The Veteran has been medically diagnosed with PTSD due to a corroborated stressor. CONCLUSION OF LAW PTSD was incurred during the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As the Board is granting the claim of service connection for PTSD, the claim is substantiated, and there are no further VCAA duties. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). Service Connection Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. 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). Generally, in order to prevail on the merits on the issue of service connection, there must be competent evidence of current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). 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). 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 posttraumatic stress disorder 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. For purposes of this paragraph, "fear 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. 38 C.F.R. § 3.304(f)(3) (2013). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. The preponderance of the evidence must be against the claim for benefits to be denied. Alemany v. Brown, 9 Vet. App. 518 (1996). As one of his stressors, the Veteran had reported a mid-air collision at Whiting Field in Florida while he was stationed there sometime in 1960-1961; and that he was sent to retrieve the bodies of the men who were killed in the accident. In the September 2010 supplemental statement of the case, the RO noted that research had confirmed this incident. The Board notes that an internet article reflects that a mid-air collision occurred on February 28, 1961. Three of the men survived and one was killed. One of the three survivors reported that when he arrived in sick bay and his helmet was taken off, fluids came rolling out because the blast separated the tight seam with his forehead and blew the fluids up in his helmet. The Board notes that although the Veteran got some details wrong (he implied that three men were dead and one was never found), the mid-air collision is confirmed. Moreover, that the Veteran had to search for bodies is consistent with the fact that there was a collision. The Veteran has also reported stressors while serving on the U.S.S. Constellation-there was one fellow service member who was killed in action and one who was taken prisoner of war. The Veteran's representative has provided information which reflects that, in August 1964, the U.S.S. Constellation lost a plane whose pilot was the first Navy pilot to be killed in Vietnam and another service member who was the first Navy prisoner of war. The Veteran's service personnel records reflect that he served with Attack Squadron 146, which was stationed on the U.S.S. Constellation at that time. As such, it appears that this stressor has been confirmed. The Veteran underwent a VA examination in September 2006. The examiner reviewed the claims file in conjunction with the examination. The Veteran reported several in-service incidents that were relevant to criteria A for PTSD. The first incident involved a plane landing. The catch wire was broken and the pilot went off of the "round down" and the catch wire severed off the foot of the chief. The Veteran could not forget the look on the pilot's face, and he got sick to his stomach when he saw the chief's foot on the gurney next to him. A second reported incident was similar. This time, the catch wire slammed some seamen against a wall. Four men had to be evacuated, and the site was "all bloody." The Veteran found the experience to be horrifying. A third incident involved a mid-air collision while he was stationed in Pensacola in 1962. He was assigned to search for the crew of the two planes. One pilot was found in a hole in the ground; another was found in "two parts." A third pilot was found in a creek and when they tried to remove his helmet, his head fell off because he was burned to a crisp. The fourth pilot was not found. A fourth incident involved a pilot being launched into the water. The pilot died. The VA examiner found that criterion A for PTSD appeared to be partially met. The Veteran also reported unwanted memories, flashbacks, and nightmares. He stated that he got upset about things that reminded him of the Navy. He denied having psychological reactions to reminders of his experiences in the Navy. The examiner opined that criterion B for PTSD appeared to have been met; but the connection to his experiences in the Navy was weak. The examiner also found that criterion C for PTSD appeared to have been met; but once again found that the connection to his experiences in the Navy was weak. Similarly, he found that criterion D for PTSD appeared to have been met, but that there was no obvious connection between these symptoms and unique criterion A events. The examiner also found that criteria E and F were met. Despite finding that all the PTSD criteria had been met, the examiner opined that the Veteran did not have PTSD. He noted that when he asked the Veteran about a prior statement regarding being a combat Veteran, he explained that he had just "blurted it out." The examiner, however, noted that the Veteran clearly preferred to be seen as a combat Veteran. The Veteran reported at least moderate re-experiencing symptoms of his in-service stressors (including unwanted memories and nightmares); however, the examiner found that other symptoms (insomnia, hypervigilance, lack of concentration) were not connected to any criterion A event. He diagnosed the Veteran as having alcohol dependence, in early remission; major depressive disorder, recurrent, in partial remission; dysthymic disorder; and antisocial personality traits. A December 2006 correspondence from psychologist G.C.A. reflects that he completed an extensive clinical interview with the Veteran. As a result of that interview, he opined that the Veteran met the criteria for PTSD which appeared to be connected to incidents he experienced while serving in the U.S. Navy. G.C.A. submitted a follow-up correspondence in June 2008 in which he re-iterated that the Veteran met the DSM-4 criteria for PTSD and that it was as likely as not that his PTSD was linked to the stressors experienced during military service (lost pilots while he was aboard the U.S.S. Constellation off the coast of Vietnam). In October 2007, the Vet Center determined that the Veteran had PTSD. The Veteran reported the incident in which a plane landed and the catch wire severed the chief's leg. He also reported the mid air collision and the search for the missing pilots. The Vet Center examiner found that the Veteran's symptoms met the criteria for PTSD, per DSM-IV. The examiner found that the Veteran met the criteria A (1 and 2), B (1, 2, and 4), C (1, 2, 4, 5, 6, and 7), D (1, 2, 3, and 5), E and F. The Veteran underwent another VA examination in July 2010. The examiner reviewed the claims file in conjunction with the examination. The Veteran again reported the in-service incident in which a catch wire severed the leg of a chief and a pilot went overboard and crashed. The Veteran stated that he felt scared because the wire just missed him (and others). Then his reaction turned to guilt. It appears from this report that the chief was trying to get the Veteran and other crewman out of the way of the wire, and the wire hit the chief instead. The examiner noted that the Veteran reported fear and guilt (but more so guilt). He denied any intense fear, helplessness, or horror at the time of the event when he was specifically asked. The Veteran also denied any intense fear, helplessness, or horror at the time of the mid air collision and search for bodies. Instead, he stated that he just felt sick. Consequently, the examiner found that criterion A was not fully met (given the denial of an A2 emotional response). The examiner found that the Veteran met criteria B and C. He did not meet criterion D (persistent symptoms of increased arousal as indicated by two or more of the following: difficulty falling or staying asleep, irritability or outbursts of anger, difficulty concentrating, hypervigilance, and exaggerated startle response). The examiner found that the Veteran did not meet criterion D because the only symptom that the Veteran reported was sleep disturbance. The examiner found that the Veteran did not suffer from PTSD. He diagnosed the Veteran with alcohol dependence in early full remission (per Veteran's report) and a personality disorder, not otherwise specified, with antisocial personality traits. In May 2011, the Veteran underwent an examination by a private Licensed Marriage and Family Therapist with "significant experience diagnosing and treating individuals with PTSD." The examiner (A.L.) fully outlined the DSM-IV criteria for PTSD. She noted the stressors that the Veteran has previously reported. Moreover, she stated that with each of these stressors, the Veteran responded with intense fear, helplessness and/or horror. When asked about the stressors in his own words, he stated that he felt shocked with absolute and utter disgust, to the point of immediate vomiting. She directly responded to the July 2010 examiner's findings that the Veteran did not experience intense fear, helplessness, or horror at the time of the stressor. She noted that the definition of the word horror includes intense feelings of fear, shock, and repugnance (disgust). When she specifically asked the Veteran if the events were "horrifying", he responded absolutely in the affirmative. She also noted the July 2010 examiner's questions regarding criterion D. She noted that in addition to the sleep disturbances acknowledged by the July 2010 VA examiner, the memories of the stressors caused the Veteran to experience irritability (which she witnessed herself) and outbursts of anger (as reported by the Veteran). Consequently, she found that the Veteran fully met criterion D. She diagnosed the Veteran as having PTSD and stated that in her opinion, the PTSD is related to the stressors that the Veteran experienced in service. In May 2012, the July 2010 VA examiner submitted an addendum in response to A.L.'s May 2011 report. He noted that A.L. only focused on the criteria that were not met at the July 2010 examination. A.L. did not comment on criteria B, C, and D (though the Board notes that she did discuss criterion D). He also stated that A.L. failed to comment on various inconsistencies made by the Veteran during the course of the appeal. He found that the Veteran's stressors and self reports were not credible. The Veteran underwent another VA examination in July 2012. The examiner reviewed the claims file in conjunction with the examination. The examiner noted inconsistencies in the record that included one report in which the Veteran stated that he began drinking at age 9; but he never got drunk. He noted that this was inconsistent with another report that the Veteran drank to the point of passing out in childhood. He also noted various reports regarding the level of harm that his drinking caused in terms of staying employed. The Veteran reported the same stressors that have already been noted; however, the examiner did not find that they satisfied criterion A2. According to the examiner, the Veteran denied that the stressors caused him to experience intense fear, helplessness, or horror at the time of the stressor. The examiner did not complete the sections regarding criteria B, C, D, E, and F. The only symptom that he acknowledged the Veteran as having was difficulty in establishing and maintaining effective work and social relationships. He failed to check off "panic attacks" despite the fact that the Veteran specifically reported symptoms of panic attacks lasting 3-4 times per week. The examiner found the Veteran's self-reports to be unreliable. Consequently, he did not diagnose the Veteran with PTSD. In August 2012, C.M. (readjustment therapist at the Vet Center) submitted a correspondence in which she stated that the Veteran has been a client since June 2006, and that he has seen numerous counselors and regularly attended weekly PTSD groups since December 2011. She stated that in her opinion, there is no doubt that the Veteran has lived with military related traumatic memories for 40 plus years. In February 2013, A.L. submitted a correspondence in which she rebutted the contentions of the July 2010 VA examiner and his May 2012 addendum. In it, she discussed all the PTSD criteria (A, B, C, D, E, and F). She noted that it was unnecessary to discuss all five symptoms listed under criterion D because in order to satisfy the criterion, the Veteran must only exhibit two or more of the symptoms. She once again noted that the Veteran experienced difficulty falling and staying asleep; he experienced irritability; and he experienced outbursts of anger. Consequently, criterion D was met even without the Veteran experiencing all five symptoms. She also noted that the Veteran persistently re-experienced the stressors in the form of nightmares and intense psychological distress (thereby satisfying criterion B). He also avoids stimuli associated with the traumas (thereby satisfying criterion C). She reiterated her opinion that the Veteran meets all the DSM-IV criteria for PTSD and that the Veteran's PTSD is related to service. The Veteran underwent another VA examination in May 2013. The examiner reviewed the claims file in conjunction with the examination. Once again, the Veteran reported the same stressors that he had reported at prior examinations. With regards to (1) the mid air collision and (2) the incident in which the catch wire severed the chief's leg and the pilot crashed, the examiner found that both stressors satisfied criteria A. With regards to the first stressor, the Veteran denied feeling fear or helplessness; but he stated that he was horrified. With regards to the second stressor, the Veteran stated that he felt fear, helplessness, and horror. The examiner also found that the Veteran satisfied criterion B; however, he found that the Veteran failed to satisfy criterion C. He stated that there was no persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness. He also found that the Veteran failed to satisfy criterion D because there was no persistent symptoms of increased arousal. The examiner found that the Veteran's self reports to be mainly credible. He noted that any inconsistencies may be due to associated symptoms of long term chemical dependencies. The examiner noted that the Veteran answered "yes" to several symptom-related questions. Further queries, however, revealed that the symptoms were generally mild and transient in nature, and that they do not cause significant disruption or impairment, and are generally not of sufficient severity to be considered symptoms of a psychological disorder. With regards to sleep disorder, the examiner found it to be less likely than not related to traumatic events in service. Instead, he noted that these difficulties are common amongst those with alcohol dependence. Analysis The Board notes that two of the Veteran's alleged stressors have been sufficiently confirmed. The issue is whether the Veteran suffers from PTSD and whether that PTSD is due to the confirmed stressors. The Veteran has undergone numerous examinations, and numerous opinions have been offered. The Court has held that the Board must determine how much weight is to be attached to each medical opinion of record. See Guerrieri v. Brown, 4 Vet. App. 467 (1993). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Adequate reasons and bases, in short, must be presented if the Board adopts one medical opinion over another. In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. The Board finds that there are no substantial or significant factors which favor one opinion over another. As such, the evidence is in relative equipoise. The Board notes that G.C.A, A.L., and the examiners at the Vet Center have consistently found the Veteran to have PTSD that is related to the Veteran's in-service stressors. Moreover, A.L. has thoroughly gone through the DSM-IV criteria and provided a thorough rationale upon which to base her diagnosis. The VA examiners have consistently found that the Veteran does not have PTSD; however, they have come to the same conclusion despite very different findings. The September 2006 examiner found that the Veteran met all the criteria for PTSD; however, he found that many of the Veteran's symptoms were not due to an in-service stressor. The July 2010 VA examiner found that the Veteran satisfied criteria B and C, but that he did not satisfy criterion A2 because the Veteran denied any intense fear, helplessness, or horror at the stressors. The Board finds that the Veteran has reported these feelings at various times, including at his May 2011 examination with A.L. and at his May 2013 VA examination. The July 2010 examiner also stated in his May 2012 addendum, that the Veteran's self reports were not credible because they contained too many inconsistencies. The Board notes that some inconsistencies are to be expected when trying to recount details of events that took place more than 40 years ago. The May 2013 VA examiner found that the Veteran satisfied criterion A (including A2) and B. He also found that the Veteran's self-reports were mostly credible and that inconsistencies may be due to associated symptoms of long term chemical dependencies. He found that the Veteran did not satisfy criterion C; however, this finding conflicts with A.L., G.C.A., the September 20006 VA examiner, and the July 2010 VA examiner. Most notably, he acknowledged that the Veteran reported the requisite symptoms; but only that the symptoms were mild and transient. The Board finds that more often than not, the examination findings reflected that the Veteran satisfied criterion A. More often than not, the examination findings reflected that the Veteran satisfied criterion B. More often than not, the examination findings reflected that the Veteran satisfied criterion C. Finally, more often than not, the examination findings reflected that the Veteran satisfied criterion D. Criteria E and F refer to the duration of the symptoms and whether the symptoms cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. The examiners that found that the Veteran has PTSD noted that criteria E and F were also satisfied. In affording the Veteran the full benefit of the doubt, the Board finds the VA examination reports, the Vet Center reports, and the findings of G.C.A. and A.L. sufficient to grant service connection for PTSD. The Board is concerned about the Veteran's credibility. Several of his reports-particularly those concerning the pilots in the mid-air collision-were factually contradicted. Indeed, his purported eyewitness accounts concerning the condition of the four pilots were so factually inaccurate, it was not unreasonable for the RO to conclude that the Veteran was not involved as he described. Nonetheless, the stressors involving the U.S.S. Constellation were corroborated to such a degree as to bring the evidence at least into equipoise. As such, the benefit of the doubt will be resolved in the Veteran's favor and his claim for service connection for PTSD is granted. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(3) (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 1990). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs