Citation Nr: 1410158	
Decision Date: 03/12/14    Archive Date: 03/20/14

DOCKET NO.  11-02 095	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Louisville, Kentucky


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and schizoaffective disorder. 


REPRESENTATION

Appellant represented by:	Mr. J. Michael Woods, Attorney at Law 


ATTORNEY FOR THE BOARD

J. Murray, Counsel 






INTRODUCTION

The Veteran served on active duty in the United States Army from November 1982 to May 1990. 

This matter comes on appeal before the Board of Veteran's Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs, Regional Office located in Louisville, Kentucky (RO), which in pertinent part, denied the benefit sought on appeal.  The Veteran initially appealed the denial of four other service connection claims, but on his January 2011 substantive appeal, VA Form-9, he specifically stated that he only wished to appeal his PTSD claim.  As such, the other four claims are not on appeal before the Board. 

The Board findings that the Court of Appeals for Veterans Claim's holding in Clemmons v. Shinseki, 23 Vet. App. 1   (2009) is applicable in this case, as a review of the record reflects that the Veteran's has various diagnosed psychiatric disorders, including PTSD and schizoaffective disorder.  As such, the Board re-characterized the issue on appeal to acquired psychiatric disorders, including the PTSD and schizoaffective disorder.


FINDINGS OF FACT

1.  The weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran has a diagnosis of PTSD in accordance with § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and his diagnosed PTSD is related to his confirmed in-service stressor events. 

2.  The Veteran's diagnosed schizoaffective disorder is likely aggravated by his PTSD disability. 




CONCLUSION OF LAW

The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder, have been met.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist 

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  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.

Service Connection 

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.  Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service.  Id. 

In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic."  When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim.  There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence.  See 38 C.F.R. § 3.303(b).

Service connection may be granted on a presumptive basis for certain chronic diseases, if they are shown to be manifest to a degree of 10 percent or more within one year following the Veteran's separation from active military service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  

In general, to prevail on the issue of service connection, a claimant must show: "(1) the existence of a present disability; (2) 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."  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the condition pursuant to 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)); (2) credible supporting evidence that the claimed in-service stressors actually occurred; and (3) a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors.  38 C.F.R. § 3.304(f).  

The evidence necessary to establish the occurrence of a recognizable in-service stressor event will vary depending upon whether a veteran engaged in "combat with the enemy".  See Gaines v. West, 11 Vet. App. 353, 359 (1998).  Participation in combat is determined on a case-by-case basis, and it requires that a veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality.  See VAOPGCPREC 12-99 (October 18, 1999); Morgan v. Principi, 17 Vet. App. 149 (2003).  See also Sizemore v. Principi, 18 Vet. App. 264, 273-74 (2004). 

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, as long as such testimony is found to be 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).

Effective July 12, 2010, VA has amended its adjudication regulations governing service connection for posttraumatic stress disorder (PTSD) by liberalizing, in certain circumstances, the evidentiary standard for establishing the required in-service stressor.  

Specifically, the final rule amends 38 C.F.R. § 3.304(f) by redesignating current paragraphs (f)(3) and (f)(4) as paragraphs (f)(4) and (f)(5), respectively, and by adding a new paragraph (f)(3) that reads as follows: 

(f)(3) 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 [PTSD] 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.  See 38 C.F.R. § 3.304(f); 75 Fed. Reg. 39843-133 (July 13, 2010).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).  If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue.  38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102.  On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable.  Ortiz, 274 F.3d at 1365.

In this case, the Veteran seeks entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder.  He asserts that he has current psychiatric problems that are related to his period of service.  In particular, he attributes his current psychiatric problems to the events surrounding his service when he was deployed to Grenada from October 1983 to November 1983.  He reports that he observed dead bodies on the roads and he was exposed to hostile fire during firefights.  He believed that on multiple occasions he was going to die during his deployment in Grenada.    

A review of the Veteran's service personnel records shows he served as a VULCAN systems mechanic with the 82nd Airborne Division in Grenada from October 28, 1983 to November 20, 1983.  He received imminent danger pay and he was awarded the Army Achievement Medal for his service in Grenada.  The Veteran's statements concerning his experiences are found to be credible and consistent with his service.  VA conceded that the Veteran's in-service stressor events occurred.  See February 2010 memorandum to the claims folder.   

The remaining questions before the Board regarding the claim for service connection for PTSD are (1) whether there is medical evidence establishing a diagnosis of PTSD as defined in DSM-IV, and (2) whether there is medical evidence of nexus between the diagnosis and the in-service stressor events. 

On the question of a current diagnosis, the Board finds that the weight of the competent evidence is at least in relative equipoise on the question of whether the Veteran has a diagnosis of PTSD as defined in DSM-IV.  Private medical treatment records from the Veteran's hospitalization in September 2009 shows an Axis I diagnosis of PTSD, but an October 2009 VA mental health in-take summary shows that a diagnosis of PTSD was ruled out by the Veteran's treating VA clinical psychologist.  In March 2010, the Veteran was also afforded a VA psychiatric evaluation to evaluate his claimed PTSD.  The VA examiner found that based on a review of the claims folder and the findings from clinical evaluation, the Veteran had PTSD traits but he did not meet the DSM-IV criteria for a diagnosis PTSD.  However, the March 2010 VA examiner further found that additional testing specific for PTSD was recommended.  It does not appear that any additional testing was conducted by VA. 

The record also contains August 2013 mental health questionnaire and private medical examination reports, both prepared by H.H-G., PhD., that show Axis I diagnosis of PTSD, 309.81.  The Board notes that "309.81" is the designated diagnostic code for PTSD in the DSM-IV.

Although, the March 2010 VA examiner found that the Veteran's symptoms did not fully meet the DSM-IV criteria for PTSD, Dr. H-G. diagnosed the Veteran with PTSD under the DSM-IV criteria.  There is no indication in the record that the private evaluation cannot be accurately based on the Veteran's reports of his experiences in Grenada.  See Coburn v. Nicholson, 19 Vet. App. 427 (2006) (a medical opinion cannot be disregarded solely on the rationale that the medical opinion is based on a history provided by the veteran).  The Veteran's statement regarding his in-service stressor event has already been conceded and his statements are considered credible.  Moreover, in the August 2013 private report, Dr. H-G indicated that she had reviewed the medical evidence in the Veteran's claims folder and considered the findings by the March 2010 VA examiner.  Resolving reasonable doubt in the Veteran's favor on the question of diagnosis of PTSD, the Board finds that the Veteran has a diagnosis of PTSD as defined by DSM-IV.  

With respect to the remaining question of relationship of PTSD to in-service stressful events, Dr. H-G. has related the Veteran's PTSD to his in-service stressor events while he was deployed in Grenada.  Further, even though the VA examiner stated that the Veteran's symptoms did not fully meet the criteria for PTSD, the VA examiner expressed that the symptoms that the Veteran does experience were manifested by his recollections of his deployment in Grenada.  The Board finds that this is a sufficient competent evidence to establish a nexus between the Veteran's PTSD and his service.  Resolving reasonable doubt in the Veteran's favor, the Board concludes that service connection for PTSD is warranted.

Lastly, the Board notes that Dr. H-G. also found that the Veteran's diagnosed schizoaffective disorder was aggravated by his PTSD disability.  See August 2013 private examination report.  In support of this medical conclusion, Dr. H-G. referenced medical literature on clinical studies that demonstrate that schizoaffective disorder is aggravated by trauma and PTSD symptoms.  Pertinently, there is no medical opinion to the contrary.  Based on the foregoing, the Board finds that the Veteran's schizoaffective disorder is secondary to his PTSD disability.  See 38 C.F.R. § 3.310.  Accordingly, service connection is warranted. 


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and schizoaffective disorder, is granted. 




____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs