Citation Nr: 1339845	
Decision Date: 12/04/13    Archive Date: 12/18/13

DOCKET NO.  08-05 410	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Military Order of the Purple Heart of the U.S.A.


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Ogilvie, Counsel

INTRODUCTION

The Veteran served on active duty from February 1971 to February 1973.

This matter comes before the Board of Veterans' Appeals from an August 2006 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.

Although the Veteran filed a substantive appeal on the issue of entitlement to an initial rating in excess of 10 percent for residuals of a fractured right wrist, in correspondence dated in December 2011, the Veteran stated that his appeal was satisfied by the grant of a 40 percent rating in a December 2011 rating decision.  Therefore, this issue is no longer on appeal.

In August 2012, the Veteran testified before the undersigned by videoconference at a Board hearing.  A copy of the transcript has been associated with the claims file.  Subsequent to the hearing, the Veteran submitted medical evidence directly to the Board without a waiver of initial agency of original jurisdiction (AOJ) consideration.  However, because the benefits sought herein are being fully allowed by the Board, referral of this evidence to the AOJ is unnecessary.  See 38 C.F.R. § 20.1304(c) (2013).


FINDING OF FACT

The preponderance of the evidence of record indicates that the Veteran has been diagnosed with PTSD, which has been linked to a corroborated in-service stressor of exposure to violent rioting in Okinawa.



CONCLUSION OF LAW

Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125(a) (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

In light of the fully favorable determination on the issue decided below, no further discussion of compliance with VA's duties to notify and assist is necessary.

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; 38 C.F.R. § 3.303(a).  Service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  The Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).

Establishing entitlement to service connection for PTSD consists of medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor actually occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor.     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) (DSM-IV).

The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether a veteran engaged in "combat with the enemy."  See Gaines v. West, 11 Vet. App. 353, 359 (1998).  If VA determines that a veteran engaged in combat with the enemy and his alleged stressor is combat-related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required-provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service."  See 38 U.S.C.A. 1154(b); 38 C.F.R. 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). 

The Board notes that, effective July 13, 2010, 38 C.F.R. §3.304(f) was amended to liberalize, in certain circumstances, the evidentiary standard for establishing the occurrence of the required in-service stressor.  See 75 Fed. Reg. 39843 (July 13, 2010), and 75 Fed. Reg. 41092 (July 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010).  The revisions apply to, among others, claims appealed before July 13, 2010, but not yet decided by the Board.

The revisions add to the types of claims VA will accept through credible lay testimony alone, as being sufficient to establish the occurrence of an in-service stressor without undertaking other development to verify the veteran's account.  The July 2010 amendment of 38 CFR § 3.304(f) eliminates the requirement for corroborating evidence of the claimed in-service stressor if it is related to the veteran's "fear of hostile military or terrorist activity."  Here, however, the Veteran does not assert that he was exposed to the type of stressor (hostile military or terrorist activity) contemplated by the regulatory amendments, and the amendments therefore are not applicable in this case. 

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).

The record contains medical evidence establishing a diagnosis of PTSD, conforming to the DSM-IV, and as such, the first element to establish service connection has been established.  See, e.g., November 2011 VA examination report; February 2012 private psychological report.  The record also contains a corroborated in-service stressor, satisfying the second element.  See October 2011 VA Memorandum verifying the Veteran's stressor of riots in Okinawa.  The relevant issue in this appeal is related to the third element-namely, a link, established by medical evidence, between the Veteran's current PTSD symptomatology and his claimed in-service stressor of rioting in Okinawa.  38 C.F.R. § 3.304(f).

Regarding this element, there are opposing opinions of record.  First, in a February 2012 addendum, the VA examiner who conducted the November 2011 examination, stated that the Veteran's PTSD was caused by childhood trauma, and the in-service attempted rapes of his spouse contributed to his PTSD.  He found that the Veteran's in-service exposure to rioting in Okinawa was not adequate to result in a diagnosis of PTSD.

Several private records, however, have attributed the Veteran's PTSD to his in-service exposure to rioting in Okinawa.  See, e.g., October 2010 statement by a private psychologist; January 2012 statement by a private psychologist, and February 2012, August 2012, and July 2013 statements by a private psychologist.

The Board finds the VA examination report, as well as the private reports, to be probative regarding the question of whether the third element is satisfied, as they all were based on evaluations of the Veteran and credible evidence of record.  The Board points out that VA is not free to ignore a medical opinion (see Owens v. Brown, 7 Vet. App. 429, 433 (1995)), or to reject a medical opinion based on its own medical judgment (see Obert v. Brown, Vet. App. 30 (1993) and Colvin v. Derwinski, 1 Vet. App. 171 (1991)), even if the opinion is based on lay assertions.  The fact that an examiner relied on the assertions of the Veteran does not render the opinion not credible unless the Board finds that the lay statements are not credible.  See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).  Here, the Board has evaluated the totality of the evidence in determining that the statements of the Veteran have been consistent throughout the appeal and are determined to be credible.  Hence, the Board also accepts as credible and probative the medical opinion evidence that is based, in part, on these credible lay assertions.

Given the facts noted above, and with resolution of all reasonable doubt in the Veteran's favor, the Board concludes that the criteria for service connection for PTSD have been met.


ORDER

Entitlement to service connection for PTSD is granted.



____________________________________________
SONJA A. MISHALANIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs