Citation Nr: 1341674 Decision Date: 12/17/13 Archive Date: 12/31/13 DOCKET NO. 07-30 759 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from April 1966 to November 1969, and had subsequent reserve service. This matter comes to the Board of Veterans' Appeals ("Board") on appeal from an August 2006 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Muskogee, Oklahoma, which denied the Veteran's claim. In March 2011, the Board remanded the Veteran's claim for further development. In July 2013, the Board again remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to provide the Veteran with VCAA notice. The action specified in the July 2013 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). The Board must note that in reviewing this case the Board has reviewed the Veteran's claims file in VBMS and on the "Virtual VA" system to ensure a total review of the evidence. FINDING OF FACT The Veteran has a current diagnosis of PTSD that has been related to his active military service by a VA psychiatrist. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disability, diagnosed as PTSD, have been met. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). In general, service connection requires competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). 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) (2013). Establishing service connection for PTSD requires specific findings. These are (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in- service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in- service stressor. See 38 C.F.R. § 3.304(f) (2013). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, of the American Psychiatric Association (DSM-IV). Id.; see also 38 C.F.R. § 4.125(a) (2013). 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). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). Previously, if VA determined either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor was not combat related, the veteran's lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Instead, the record had to contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996). However, VA has recently amended its regulations governing service connection for PTSD by liberalizing the evidentiary standard for establishing the required in-service stressor where the following requirements are satisfied: First, the veteran must have experienced, witnessed, or have been confronted by 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, and the veteran's response to the event or circumstance must have involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f)). Second, a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, must confirm that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor. Id. Additionally, there must be in the record no clear and convincing evidence to the contrary, and the claimed stressor must be consistent with the places, types, and circumstances of the veteran's service. Id. These revised regulations became effective July 13, 2010, and apply in cases like the Veteran's which were appealed to the Board prior to July 13, 2010, but not decided by the Board as of that date. 38 C.F.R. § 3.304(f)). The Veteran claims that his PTSD was caused by his service in the Republic of Vietnam. Specifically, the Veteran reported that while serving in the Republic of Vietnam from November 1968 to November 1969 his base camp came under mortar attacks. He also reported that, on one occasion, he heard small arms fire within his compound, saw a Vietnamese officer chasing another man with a rifle, and that a Vietnamese officer threatened to shoot him when he got in the way. He also claims that he has PTSD based on an in-service personal assault in which he was severely beaten by two of his tent-mates. The Veteran's service personnel records verify his claims of serving in the Republic of Vietnam from November 1968 to November 1969. Moreover, service treatment records dated in March 1969 document the Veteran's claim about being in a fight prior to a period of hospitalization, which the Board finds is sufficient to corroborate this stressor. Additionally, the Board finds that the Veteran's claimed exposure to mortaring and small arms fire is consistent with the circumstances, conditions, or hardships of his service in Vietnam. These stressors are further corroborated by the Veteran's service personnel records, with a May 1969 evaluation noting that "The geographical location of this unit is such that an alert and positive mind is required at all times. Sgt [] has always responded immediately to all enemy harassment activities in an outstanding manner." This statement suggests that hostile attacks routinely occurred at the Veteran's place of deployment. The events described by the Veteran involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others. Additionally, in his accounts to his VA treatment providers and the August 2011 VA examiner, the Veteran has described feeling scared and helpless. At issue is whether the Veteran has a diagnosis of PTSD. VA outpatient treatment records show diagnoses of PTSD from multiple treatment providers, including a VA psychiatrist, Dr. G.F., and a psychiatric clinical specialist, B.H.. However, at a VA examination in August 2011, the VA examiner concluded that the Veteran did not meet all the DSM-IV criteria for PTSD. She diagnosed the Veteran with depressive disorder, but opined that it was less likely than not related to service and that the Veteran had developed depression secondary to serious health problems, including untreated sleep apnea. The Veteran, himself, attributed depression to work stress and to a variety of health matters, all of which are not service-connected. While the VA examiner's report is extremely comprehensive, the Veteran's ongoing VA treatment records also document in detail his symptomatology and its effects on his daily life. Furthermore, the Board notes that Dr. G.F., a VA physician, had an opportunity to evaluate the Veteran on multiple occasions and appeared to have an understanding of the Veteran's ongoing psychiatric problems. Accordingly, the Board finds that the evidence is at least in equipoise whether the Veteran has a current diagnosis of PTSD and reasonable doubt is resolved in the Veteran's favor. As Dr. G.F. has characterized the Veteran's PTSD as "combat related", the Board finds that a nexus has been established between the Veteran's claimed stressors and his PTSD diagnosis. Based on all the above evidence and resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to service connection for an acquired psychiatric disorder, diagnosed as PTSD, should be granted. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013). ORDER Service connection for an acquired psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs