Citation Nr: 1342902 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 13-01 778 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for posttraumatic stress disorder ("PTSD"). REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from May 1966 to May 1969. This matter comes before the Board of Veterans' Appeals ("Board") on appeal from a December 2011 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Nashville, Tennessee, which denied the claim. FINDING OF FACT There is at least an approximate balance of positive and negative evidence regarding whether the Veteran has PTSD as a result of a stressor that occurred during active duty service. CONCLUSION OF LAW Affording the Veteran the benefit of the doubt, PTSD was incurred in active military service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 ("VCAA") With respect to the Veteran's claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Moreover, in light of the favorable decision for the Veteran, any error in the content or timing of VCAA notice or assistance, if shown, would be moot. II. Law and Analysis In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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"- the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for the Federal Circuit ("Federal Circuit") recently held that, for purposes of 3.303(b), where the veteran asserts entitlement to a chronic condition, but there is insufficient evidence of a diagnosis in service, the veteran can establish service connection by demonstrating a continuity of symptomatology since service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1337-39 (Fed. Cir. 2013), affirming Walker v. Shinseki, No. 10-2634, 2011 WL 2020827 (Vet. App. May 25, 2011). (emphasis added). For disabilities that are not listed as chronic under 38 C.F.R. § 3.303(b), the only avenue for service connection is by a showing of in-service incurrence or aggravation under 38 C.F.R. § 3.303(a), or by showing that a disease that was first diagnosed after service is related to service under 38 C.F.R. § 3.303(d). The Veteran contends that he has PTSD primarily as a result of his fear of hostile military activity during service in the Republic of Vietnam during the Vietnam era between 1967 and 1968. Specifically, the Veteran has described being in fear for his life on several occasions during service in a combat zone when his compound came under attack by Viet Cong enemy forces; he also reports being present during the 1968 Tet Offensive. Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disability, (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 claimed in-service stressor. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD element as set forth in 38 C.F.R. § 3.304(f), evidence of an in-service stressor, the evidence necessary to establish the occurrence of the claimed stressor actually varies depending on the circumstances of the stressor and the nature of a veteran's service. The American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) ("DSM-IV") provides two requirements as to the sufficiency of a stressor: (1) A person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or threatened death or serious injury, or a threat to the physical integrity of self or others," and (2) "the person's response [must have] involved intense fear, helplessness, or horror." DSM-IV at 427-28. These criteria are no longer based solely on usual experience and response, but are individualized (geared to the specific individual's actual experience and response). Hence, under the DSM-IV, the mental illness of PTSD would be treated the same as a physical illness for purposes of VA disability compensation in terms of a predisposition toward development of that condition. Cohen v. Brown, supra. See also Zarycki v. Brown, 6 Vet. App. 91 (1993) (the Court held that the presence of a recognizable stressor is the essential prerequisite to support the diagnosis of PTSD). 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. See 38 C.F.R. § 3.304(f)(1); see also, 38 U.S.C.A. § 1154(b) (West 2002 & Supp. 2013). Otherwise, the law requires verification of a claimed stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). 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. Mere service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Service department evidence that a veteran engaged in combat or that a veteran was awarded the Purple Heart Medal, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. Id. Where a determination is made that a veteran did not "engage in combat with the enemy," or the claimed stressor is unrelated to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Thus, he must corroborate his testimony by credible supporting evidence. See Stone v. Nicholson, 480 F.3d 1111, 1114 (Fed. Cir. 2007) (finding no error in Board determination that a non-combat veteran's "own statements cannot serve as 'corroboration' of the facts contained in those statements."). In such cases, the record must include service records or other credible evidence that supports and does not contradict the veteran's testimony. Doran v. Brown, 6 Vet. App. 283, 289 (1994). Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressor(s). See Moreau at 395-396; Cohen v. Brown, 10 Vet. App. 128, 42 (1997). Because the question of whether a veteran was exposed to a stressor in service is a factual one, VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). The provisions of 38 C.F.R. § 3.304(f) were recently amended, however, effective July 13, 2010, during the pendency of this appeal. See 75 Fed. Reg. 39843-52 (July 13, 2010). The primary effect of the amendment, which relaxes the evidentiary standard for establishing in-service stressors in PTSD claims, is the elimination of 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." In place of corroborating the reported stressors, VA will now rely on a veteran's lay testimony alone to establish the occurrence of a stressor related to hostile military or terrorist activity, provided that (1) the claimed stressor is consistent with the places, types and circumstances of service, (2) 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 (3) the veteran's symptoms are related to the claimed stressor. Id. For the purpose of this regulation, "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 (IED); 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) (2013). As an initial matter, while the Veteran has not specifically reported having participated in combat (his service personnel reports show his job title as an accountant), he apparently did serve in a war zone. Significantly, his service personnel reports show he served in Vietnam from October 1967 to October 1968 and participated in the Vietnam Counteroffensive, Phase III. He has essentially indicated that he feared hostile military or terrorist activity, and a VA examiner has indicated that it is an adequate PTSD stressor. There is no evidence to the contrary, the Board thus concedes that his claimed in-service combat area stressors are presumed to have occurred. See 38 U.S.C.A. § 1154(a). As stated above, however, in order to establish service connection for PTSD, a veteran must have a current diagnosis of PTSD directly related to his in-service stressor. See 38 C.F.R. § 3.304(f) (2013). The Board will therefore turn to the issue of whether the Veteran has a current diagnosis of PTSD as a result of his in-service stressors. In this respect, review of the claims folder shows that, in July 2011, the Veteran underwent a private psychological evaluation with Dr. W.A., a licensed psychologist. At the time, he reported that his military occupational specialty ("MOS") was a pay distribution specialist, but said he actually served as a supply sergeant and mail clerk in Vietnam. He noted that he had experienced several "red alerts" while serving in a war zone and described instances in which his base had come under attack by enemy forces. He reported several symptoms, including reexperiencing, intrusive thoughts, infrequent flashbacks, avoidance, less interest in things he once enjoyed, detachment from others, insomnia, hypervigilance and exaggerated startle response. Although he reported feeling good for most of the day, the clinician also found that he was experiencing some depression. The clinician's assessment included a review of the Veteran's DD 214, administration of the Minnesota Multiphasic Personality Inventory -2, and a two-hour clinical interview with the Veteran and his wife. Dr. W.A. diagnosed the Veteran with PTSD and depressive disorder, not otherwise specified ("NOS") and opined that his PTSD symptoms were as likely as not related to military service. In this respect, she noted that the Veteran described moderate symptoms of PTSD and depression and appeared to have used his work (as a self-employed Certified Public Accountant) as a form of self-medication throughout his career, noting that he was still working past age 70. She also found that the results of his assessment were consistent with the presence of PTSD and depression, noting that he specifically described reexperiencing, avoidance and hyperarousal symptoms found in persons suffering with PTSD. In October 2011, the Veteran was afforded a VA PTSD examination, at which time, he described nine service-related stressors, two of which the VA examiner found both were adequate to support a diagnosis of PTSD and were related to the Veteran's fear of hostile military or terrorist activity. After reviewing the claims folder and interviewing the Veteran and his wife, the clinician opined that the Veteran's symptoms did not confirm to the DSM-IV criteria for PTSD and that he did not have a mental disorder that conformed to the DSM-IV criteria. In this regard, she said that, while she had reviewed the July 2011 private psychological evaluation, she said that her test results differed from those of the private report. Specifically, she said that the Veteran denied ever having experienced a flashback and did not have current intrusive thoughts because he had "gotten so good at avoiding his thoughts." She also said that the Veteran denied experiencing cognitive and physiological symptoms upon exposure, the Veteran and his wife denied diminished interest and his participation in activities, and that he was still active working, gardening, being involved in his church and had played ball until the previous year. She ultimately concluded that, although he may have experienced some PTSD symptoms in the first five years or so after service, there were no indications of symptoms representing moderate PTSD symptomatology as reported in the assessment by the private provider. It is the responsibility of the Board to weigh the evidence of record, including the medical evidence, to determine where to give credit and where to withhold the same, and in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). The standard of proof to be applied in decisions on claims for veterans benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A veteran is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. 38 C.F.R. § 3.102 (2012); see Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Court has stated that "[i]t is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. In addition, the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical 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 folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). The weight of a medical opinion is diminished where that opinion is ambivalent, based on an inaccurate factual premise, based on an examination of limited scope, or where the basis for the opinion is not stated. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993); Sklar v. Brown, 5 Vet. App. 140 (1993); Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Based on the evidence of record, the Board finds that service connection for PTSD is warranted. Although the VA clinician opined that the Veteran did not have a diagnosed mental disorder, to include PTSD, the Veteran has been diagnosed with the disorder by a licensed psychologist, making the evidence at least in equipoise as to whether his symptomatology meets the criteria of the DSM-IV. Under the so-called "benefit-of-the-doubt" rule, in order for the Veteran to prevail, there need not be a preponderance of evidence, but only an approximate balance of positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. See Gilbert v. Derwinski, supra. Here, the Veteran was diagnosed with PTSD by a licensed, private psychologist who had the opportunity to assess his symptoms for at least two hours in a clinical setting. It is also apparent, per her statement, that she considered him a reliable historian. Therefore, resolving reasonable doubt in favor of the Veteran, competent medical evidence establishes a diagnosis of PTSD related to an in-service stressor. Accordingly, service connection for PTSD is warranted. See 38 C.F.R. § 3.102 (2013). The Board has also considered the Veteran's own statements made in support of his claim. As noted earlier, the Board must evaluate the competency and credibility of a veteran's lay testimony. See Layno v. Brown, 6 Vet. App. 465 (1992). Here, the Veteran is competent to report the circumstances of his in-service stressors and the symptoms associated with such events. Moreover, the Board finds those statements credible, as the Veteran has reported a consistent history of his stressors prior to, and throughout the period on appeal. Consequently, having resolved doubt in favor of the Veteran, the Board finds that the Veteran's claim of entitlement to service connection for PTSD has been established. (Continued on next page) ORDER Service connection for PTSD is granted. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs