Citation Nr: 1428366 Decision Date: 06/23/14 Archive Date: 07/03/14 DOCKET NO. 12-21 065 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and generalized anxiety disorder. REPRESENTATION Veteran represented by: James M. McElfresh, II, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from September 1973 to September 1976. This matter came to the Board of Veterans' Appeals (Board) from a May 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a RO hearing in March 2012 and testified at a Board hearing before the undersigned Veterans Law Judge in June 2013. This matter was remanded in August 2013 and January 2014. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence is at least in equipoise as to whether an acquired psychiatric disability, to include PTSD and generalized anxiety disorder, was incurred due to in-service experiences. CONCLUSION OF LAW The criteria for an award of service connection for an acquired psychiatric disability, to include PTSD and generalized anxiety disorder, have been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See 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), a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 inservice stressor. See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(f)(2). The provisions of 38 C.F.R. § 4.125(a) require that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). In determining the probative value to be assigned to a medical opinion, the Board must assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case, whether the medical expert provided a fully articulated opinion, and whether the opinion is supported by a reasoned analysis. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran asserts that she has PTSD due to searching body bags, without gloves, during her period of active service. She did not serve in combat and her stressor is not due to fear of hostile military or terrorist activity. Thus, the Board finds that 38 C.F.R. § 3.304(f)(3) is not applicable to the Veteran's contentions here. For cases such as this, not predicated on a combat-related stressor, service connection for PTSD requires medical evidence diagnosing the condition, a link established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. The record reflects that the Veteran's primary specialty was with the Military Police and that she worked in customs during service. The Board concedes that she likely searched body bags during her period of active service. In support of her claim, the Veteran submitted December 2008 correspondence from a social worker at a Vet Center. The social worker notes a diagnosis of PTSD due to military sexual trauma and searching body bags during active service. In March 2010, the Veteran submitted a lay statement in support of her claim from J.E.M. (her ex-husband who served with her) which states that he rarely had gloves when he conducted customs inspections of luggage, duffel bags, and body bags, and strip searches. A July 2010 private psychiatric evaluation from Glen E. Johnson, M.D., P.C., reflects the opinion that the Veteran has PTSD that was triggered by her duties as a customs inspector during service during non-hygienic, isolated, and forced body bag searches and her PTSD has been exacerbated by post-service divorce and job conditions. In November 2010, the Veteran submitted correspondence dated in September 2010 from the Vet Center social worker which states that the Veteran's "horrifying task" of putting her bare hands in body bags would have a PTSD response. In May 2012, the Veteran underwent a VA examination. The examiner diagnosed PTSD, but opined that her PTSD was not incurred in or caused by service as a customs inspector, during which time she was required to search body bags. Although the Veteran claimed much subjective distress due to searching body bags during military service, the claimed stressor fell short of the nature and severity of stressors expected to have a high probability of resulting in PTSD. Thus, the examiner concluded that the in-service stressor of searching body bags did not meet stressor criterion A adequate for a PTSD diagnosis. The Veteran endorsed some re-experiencing and hyperarousal symptoms due to the in-service stressor of searching body bags but did not meet the symptoms threshold criteria required for a DSM-IV TR based PTSD diagnosis. The examiner commented additionally that the claimed stressor falls short of the nature and severity of stressors expected to have a high probability of resulting in PTSD, therefore the in-service stressor of searching body bags is deemed to not meet stressor criterion A adequate for a PTSD diagnosis. In support of her claim, the Veteran testified at a Board hearing pertaining to her claimed stressor and her symptoms, and has submitted multiple articles pertaining to body bags and how PTSD affects women differently from men. In October 2013, the Veteran underwent a VA examination. The examiner opined that the Veteran does not suffer from PTSD. Rather, the examiner opined that the Veteran suffers from generalized anxiety disorder. The examiner stated that onset of her generalized anxiety disorder was in high school prior to joining the military. The examiner based this opinion on the Veteran's description of worrying about a multitude of events that began when she was in high school. The Board notes for the record that an August 1973 Report of Medical Examination performed for enlistment purposes reflects that the Veteran's 'psychiatric' state was normal. Likewise, on an August 1973 Report of Medical History, the Veteran checked the 'No' boxes for 'nervous trouble of any sort' and 'depression or excessive worry.' Thus, the Veteran is presumed to have been sound upon entry into service. See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any "increase in disability [was] due to the natural progress of the" preexisting condition. 38 U.S.C.A. § 1153. If this burden is met, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness under section 1111, the veteran's claim is one for service connection. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. See 38 C.F.R. § 3.322. In an April 2014 addendum opinion, the VA examiner stated that it was not possible to say that ALL criteria for a diagnosis of generalized anxiety disorder were clearly and unmistakably manifested prior to enlistment into service because information on ALL of the symptoms is simply not available. The examiner opined that the Veteran's generalized anxiety disorder more likely as not began prior to her active military service based on an interview with the Veteran as well as the written records available. The Board finds that such opinion does not constitute clear and unmistakable evidence that the Veteran's disability preexisted service, as the written record does not support such a finding. Thus, the question is whether the Veteran has PTSD or a generalized anxiety disorder due to service. The VA examiner opined that her generalized anxiety disorder was not due to service and was due to post-service stressors such as a sexual assault and personal assault that occurred following service. In December 2013, Dr. Johnson stated that the Veteran's body bag searches are real as her described position/duties as a Military Police Officer and these stressors are capable of causing even the most stoic individual nightmares flashbacks and extreme physical and mental discomfort. Dr. Johnson stated that the Veteran was not always issued medical gloves for the purpose of searching putrefied bodies due to shortages. The Veteran has recurrent flashbacks and nightmares showing 1) her engagement ring caught on entrails while withdrawing her left (ungloved) hand from a body bag; being escorted under orders by armed security officers to the exam building; and, handing wrapped packages found in the body cavities of an adult male who was not wearing a uniform; and, being left alone in a locked and guarded building with stacks of body bags to do the required examinations. While there is clearly negative evidence against the Veteran's claim, to include negative opinions and post-service stressors, the Board has conceded the Veteran's in-service stressors and finds that the record is deemed to be at least in equipoise as to whether the Veteran has an acquired psychiatric disability due to her in-service stressors. Thus, the Board finds that service connection is warranted for an acquired psychiatric disability, to include PTSD and generalized anxiety disorder, and the appeal is granted. ORDER Entitlement to service connection for an acquired psychiatric disability, to include PTSD and generalized anxiety disorder, is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs