Citation Nr: 1416930 Decision Date: 04/16/14 Archive Date: 04/24/14 DOCKET NO. 11-02 716 ) 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 PTSD. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant and R.L. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from December 1962 to December 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In October 2013, the Veteran testified at a Board hearing held by the undersigned. A transcript of the hearing is associated with the record. FINDING OF FACT An acquired psychiatric disorder, to include PTSD and anxiety disorder, were incurred in active service. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist In view of the favorable disposition below, the Board finds that all notification and development actions necessary to render a fair decision on the claim, including affording the Veteran a sufficient Board hearing pursuant to Bryant v. Shinseki, 23 Vet. App. 488 (2010), and 38 C.F.R. § 3.103(c)(2) (2013), have been accomplished. The Board finds that no further notification or assistance is necessary, and that deciding the appeal at this time is not prejudicial to the Veteran. II. Analysis of Claim Service Connection for an Acquired Psychiatric Disorder Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder on a direct basis, generally there must be probative 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). Psychoses, but not acquired psychiatric disorders, are listed as a chronic condition under 38 C.F.R. § 3.309(a). Therefore, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) does not apply to the claim for service connection for an acquired psychiatric disorder. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis which conforms to the criteria set forth in the Diagnostic and Statistical Manual of the American Psychiatric Association, 4th edition (DSM-IV); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) In the case of a veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, the Secretary of VA shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304 (2013). Pertinent case law also provides that 38 U.S.C.A. § 1154(b) does not create a presumption of service connection for a combat veteran's alleged disability, and that the veteran is required to meet his evidentiary burden as to service connection such as whether there is a current disability or whether there is a nexus to service which both require competent medical evidence. See Collette v. Brown, 82 F.3d 389, 392 (1996). Effective July 13, 2010, VA regulations related to PTSD claims were revised to provide that 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 posttraumatic stress disorder 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. The term "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. 38 C.F.R. § 3.304(f)(3) (effective from July 13, 2010). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim must be denied. 38 U.S.C.A. § 5107(b) ; 38 C.F.R. § 3.102, Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran asserts that he has an acquired psychiatric disorder secondary to service. At the October 2013 hearing, the Veteran testified regarding his in-service service stressors. The Veteran testified that there was an incident in which he told two officers on his ship about a fire, and the officers went into the hold of the ship and were killed in the fire. The Veteran testified that he thinks about the incident and is unable to sleep because of his thoughts. Service treatment records are negative for complaint, treatment, or diagnosis of a psychiatric disorder. In January 2009, the NPRC verified that three of the Veteran's shipmates were killed when a septic line ruptured in the belly of the ship in May 1966. Accordingly, there is credible evidence of an in-service stressor. The Veteran had a VA examination in March 2009. The Veteran reported an in-service stressor event of an accident in May 1966. He reported that three sailors were killed on the USS Intrepid (his ship) due to a gas leak in a reefer. The Veteran reported that he bunked close to them and knew them well. The Veteran reported that his PTSD symptoms included recurrent distressing dreams of the event and difficulty falling asleep or staying asleep. The examiner opined that the Veteran did not meet the criteria for a diagnosis of PTSD. The examiner diagnosed anxiety disorder but did not provide an opinion as to whether anxiety disorder is related to service. The VA examiner opined that the Veteran's does not have a significant set of symptoms necessary to meet the criteria for a diagnosis of PTSD. A VA treatment record dated in April 2009 reflects that the Veteran complained of ongoing problems with PTSD symptoms such as nightmares, flashbacks, intrusive recollections, mood lability, isolation, poor sleep and social isolation. The Veteran was diagnosed with anxiety disorder and PTSD. A VA mental health treatment note dated in July 2009 reflects that the Veteran reported ongoing problems with PTSD symptoms, such as nightmares, flashbacks, intrusive recollections, mood lability, irritability, poor sleep and social isolation. A VA psychiatrist diagnosed anxiety disorder, not otherwise specified, with depression, rule-out PTSD (related to Vietnam on a ship with collision and multiple deaths witnessed.) The Veteran had a VA examination in November 2009. The VA examiner noted that the Veteran was seen in a consultation in October 2007 and was diagnosed with anxiety disorder not otherwise specified. The examiner noted that the initial evaluation for PTSD was negative. It was noted that PTSD was initially entered as a possible problem in 2008. The examiner noted that an accident aboard the USS Intrepid in 1966 involved actual or threatened serious injury. The Veteran reported that several men died in an accident related to sewer gas. The VA examiner diagnosed anxiety disorder not otherwise specified. The VA examiner opined that the Veteran does not meet the criteria for a diagnosis of PTSD. The VA examiner did not provide an opinion regarding whether anxiety disorder is related to service. A VA mental health treatment note dated in April 2013 reflects that a VA psychiatrist diagnosed the Veteran with prolonged PTSD, based upon the Veteran's report of nightmares related to an incident in service in which he sent several guys to the engine room and they were killed. VA treatment records reflect continued outpatient treatment for PTSD. In order to prevail on the issue of service connection, a current disability must have existed on or after the date of application for that disability. See 38 U.S.C.A. § 1110; see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); see also McClain v. Nicholson, 21 Vet. App. 319, 321(2007) (agreeing that the requirement that a claimant have a current disability before service connection may be awarded is satisfied when a claimant has a disability at the time a VA claim is filed or during the pendency of that claim.). Although the March 2009 and November 2009 VA examiners opined that the Veteran did not meet the criteria for a diagnosis of PTSD, VA treatment records during the appeal period reflect that a VA psychiatrist diagnosed PTSD based upon a verified in-service stressor. Therefore, competent medical evidence establishes a diagnosis of PTSD related to an in-service stressor. Additionally, the Veteran has been diagnosed with anxiety disorder. The scope of a mental health disability claim includes any psychiatric diagnoses that may reasonably be encompassed by the Veteran's reported symptoms. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). While the VA examiners did not provide nexus opinions as to whether anxiety disorder is related to service, the diagnoses were rendered based upon the Veteran's report of symptoms related to the accident he witnessed during service. Accordingly, the Board concludes that service connection is warranted for an acquired psychiatric disorder, to include PTSD and anxiety disorder. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD and anxiety disorder, is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs