Citation Nr: 1400065 Decision Date: 01/02/14 Archive Date: 01/16/14 DOCKET NO. 11-33 207 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a depressive disorder. REPRESENTATION Appellant represented by: Tennessee Department of Veterans' Affairs ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1965 to October 1967 and from December 1990 to January 1991. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In the October 2009 rating decision, the RO characterized the Veteran's claim as one for entitlement to service connection for PTSD. Upon review of the record, the Board has expanded the issue on appeal to include one for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and a depressive disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDINGS OF FACT 1. The Veteran indicated that he was exposed to the actual death or threatened death of himself and others from hostile military activity, and, while not specifically verified, the claimed in-service stressor is consistent with the places, types, and circumstances of his service in Vietnam. 2. Having diagnosed the Veteran as having PTSD, a VA staff psychiatrist has determined that the claimed in-service stressor is adequate to support a diagnosis of PTSD, and that the Veteran's symptoms are related to the claimed stressor. 3. There is evidence that the Veteran's depressive disorder was caused or aggravated by his PTSD. CONCLUSION OF LAW 1. The criteria for entitlement to service connection for PTSD and a depressive disorder have been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303, 3.304(f)(3), 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA is required to meet the notice and duty to assist provisions of 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). Secondary service connection may be granted for a disability that is proximately due to, the result of, an established service-connected disability. 38 C.F.R. § 3.310(a). The Board must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3The Veteran's seeks service connection for PTSD. He attributes his PTSD to the stressor of being under attack while serving in Vietnam. Although the Veteran was not in combat, he contends that he was shot at, exposed to mortar attacks, witnessed explosions, and saw dead bodies during service. The Veteran's DD 214 confirms that he served in Vietnam as a petroleum storage specialist. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) medical evidence establishing a link between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f)(3). Recently, the regulations regarding service connection for PTSD were amended to provide that if a stressor claimed by a Veteran is related to the Veteran's 'fear of hostile military or terrorist activity,' a VA or VA-contracted psychiatrist or psychologist 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, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3). For purposes of this section, "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. The Veteran was afforded a VA examination in September 2010. The Veteran reported occasional nightmares, depression, problems with concentration, irritability, occasional suicidal thoughts, and exaggerated startle response. The VA examiner determined that PTSD is the primary diagnosis and the Veteran's symptoms are related to the stressor he experienced in Vietnam and those stressors are adequate to support the diagnosis of PTSD and the stressors were due to his fear of hostile military action. The depressive disorder was secondary to the PTSD. The examiner concluded that it did not seem necessary for the Veteran to receive any psychiatric care unless the symptoms change or worsen in the future. The Veteran underwent another VA examination in September 2011. After reviewing the Veteran's claim file and medical history, the examiner determined that the diagnostic criteria for PTSD were not met. The examiner noted that the Veteran did not meet the criteria for persistently re-experiencing the traumatic event and persistent avoidance of stimuli associated with the trauma. Finally, the examiner noted the prior diagnosis of PTSD, but noted the Veteran never sought treatment for PTSD and is not prescribed medication for the condition; thus, the prior diagnosis was considered erroneous. In February 2012, the Veteran was seen by a non-VA clinical psychologist. He reported vivid nightmares, anxiety, hypervigilance, impaired memory, and difficulty concentrating. The psychologist diagnosed the Veteran with PTSD and chronic dysthymia. The psychologist opined that the Veteran's symptoms were related to his experiences in Vietnam. The Veteran was assigned a GAF score of 43. The Board finds that service connection for PTSD and depressive disorder is warranted. As noted above, in claims involving fear of hostile military activity, 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. This was accomplished by the September 2010 VA examiner. The September 2010 VA examiner specifically noted that the stressor was adequate to support a diagnosis of PTSD and confirmed that the Veteran met the DSM-IV criteria for a diagnosis of PTSD. The Board further finds that the claimed stressors are consistent with the circumstances of the Veteran's service during the Vietnam War. The examiner also noted that the Veteran's depression was secondary to PTSD. The September 2011 VA examiner determined that the Veteran did not meet the criteria for a PTSD diagnosis, but based that in part on the fact that the Veteran had not sought treatment or been prescribed medication for PTSD. The September 2010 VA examiner specifically noted that treatment was not indicated at this time. Thus, the fact that the Veteran had not sought treatment does not render the September 2010 diagnosis inaccurate. The record also includes the February 2012 diagnosis from a private psychologist. Thus, the evidence is, at the very least, in relative equipoise. Resolving all reasonable doubt in favor of the Veteran, the Board concludes service connection for PTSD and depression is warranted. ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depressive disorder is granted. ______________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs