Citation Nr: 1502525 Decision Date: 01/20/15 Archive Date: 01/27/15 DOCKET NO. 10-43 041 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from April 2002 to January 2006. This appeal arose before the Board of Veterans' Appeals (Board) from a September 2007 rating decision of the Houston, Texas, Department of Veterans Affairs (VA), Regional Office (RO). In March 2013, the Veteran testified before the undersigned at a personal hearing conducted at the RO; a transcript of this hearing has been made part of the claims folder. FINDING OF FACT The Veteran has an acquired psychiatric disorder, to include PTSD that has been related to his period of service. CONCLUSION OF LAW An acquired psychiatric disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1154(a) 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (3), 4.125(a) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The VCAA describes VA's duties 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). However, because this decision grants in full the benefit requested, there is no need to discuss whether these duties were met in this case. Law and regulations Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2014). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2014). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 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). Establishing service connection specifically for the psychiatric disability of PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) ; see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2014). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the Veteran served, the Veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002 & Supp. 2014); 38 C.F.R. §§ 3.303(a), 3.304. The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the Veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). Effective July 13, 2010, VA amended 38 C.F.R. § 3.304(f) by liberalizing, in certain circumstances, the evidentiary standards for establishing the occurrence of an in-service stressor for non-combat veterans. See 38 C.F.R. § 3.304(f)(3) . Previously, VA was required to undertake extensive development to determine whether a non-combat veteran actually experienced the claimed in-service stressor and lay testimony, by itself, was not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, credible supporting evidence of a corroborated in-service stressor was required. Credible supporting evidence was not limited to service department records, but could be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor could not consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396 . The amended version of 38 C.F.R. § 3.304(f)(3) eliminates the need for stressor corroboration in circumstances in which the Veteran's claimed in-service stressor is related to "fear of hostile military or terrorist activity." See 38 C.F.R. § 3.304(f)(3). However, a key provision of the liberalizing amended version of 38 C.F.R. § 3.304(f)(3), is the requirement that it be a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, who confirms that the claimed stressor is adequate to support a diagnosis of PTSD. Id. Factual background and analysis The Veteran served in the Persian Gulf (Iraq) with the Marines Combat Assault Battalion of the 3rd Marine Division. His military occupational specialty noted the he was a Duty Dispatcher for the Motor Transport Platoon. He received the Global War on Terrorism Service Medal and the Global War on Terrorism Expeditionary Medal. The Veteran has reported several in-service stressors that he alleges have resulted in the development of PTSD. One incident involved being trapped inside his truck after convoy duty by a sniper taking shots at him. He referred to two friends that had been killed; their deaths have been confirmed. He also indicated that the base where he had served had been overrun. Finally, he stated that his truck and a truck traveling behind him had been hit by an improvised explosive device (IED). The Veteran's service treatment records included a Post-Deployment examination conducted in August 2004. He stated that while he had not been in combat to an extent that he discharged his weapon, he had seen coalition and enemy dead. He stated that he felt in constant danger of being killed. He noted little pleasure in doing things and had some depressive thoughts. He also indicated that he felt tired after sleeping. He admitted to having nightmares, but said that he tried not to think of certain events. He displayed no feelings of vigilance or numbness/detachment. No referrals were noted. The claims file contains numerous VA treatment records developed between 2007 and 2009. These noted his complaints of depression associated with certain memories of Iraq. He also displayed anxiety manifested by hypervigilance, insomnia, isolation, and wariness and discomfort in crowds. The diagnosis was PTSD. An extensive psychological assessment was conducted by VA in January 2009. He stated that he had had significant PTSD symptoms since his return from Iraq. When he had been living with his parents the symptoms seemed to improve; however, since moving to Houston in 2008, his symptoms had increased. He described having chronic depression. He also admitted that he would drink two to three times per week to get drunk. His symptoms included a depressed mood, trouble falling asleep, excessive guilt, feelings of worthlessness, fatigue, loss of energy, over-eating, thoughts of death, excessive emotionality and irritability, and social withdrawal. He also displayed anxiety symptoms, such as excessive worry and restlessness. He felt that death was following him everywhere. The mental status examination found him to be appropriately groomed, cooperative and affable. His psychomotor activity was normal, as was his speech. His affect was blunted and his mood was depressed. His thoughts were goal directed and he displayed no homicidal or suicidal thoughts. His cognition was grossly intact. He was diagnosed with PTSD and depressive disorder. In March 2009 he filled out a Reserve Component Medical Eligibility Verification form. He stated that his health was much worse than at the time of his last deployment. He checked that he had problems sleeping and was still tired after sleeping. He also noted increased irritability. He denied having been around IED's. He denied being treated for emotional stress (although there are records developed prior to this that show treatment for PTSD). His identified concerns were symptoms of depression and PTSD. In June 2010, VA examined the Veteran. His symptoms included the following: survivor guilt and guilt over having killed others. He stated during this examination that he had combat experience. The mental status examination noted that he had good grooming; unremarkable psychomotor activity; exaggerated speech; a cooperative and attentive attitude; an "alright" mood; and unremarkable thought content/processes. He had a full affect and became quite "teary" when he spoke about Iraq. He stated that he had trouble sleeping, experiencing nightmares every night. There was no indication of panic episodes and he had fair impulse control (although it was noted that he had had two violent episodes since his separation from service). The examiner commented that the Veteran was unable or unwilling to give consistent information. The examiner stated the "[p]atient's presentation is also noteworthy for exaggeration and misleading statements." For example, he had stated that he was working as a cook and then he later said that he was working as a busboy because they had too many cooks. The Veteran also described his various in-service stressors. He was noted to have the following PTSD symptoms: re-experiencing distressing events; avoidance of reminders; trouble falling and staying asleep; and a dislike of crowds. The MMPI 2 did not support a diagnosis of PTSD, although he did have some PTSD symptoms, including depression and anxiety. Further testing noted that indicators for PTSD were elevated but that they fell short of meeting the commonly accepted cut-off points for a PTSD diagnosis. While the diagnosis included PTSD symptoms, it was noted that he did not meet the criteria for a diagnosis of the disorder. The Axis II diagnosis was of narcissistic personality traits. A private psychologist examined the Veteran in March 2013. When he asked the Veteran about Iraq, he began to shake, cry and stopped speaking. He stated that there were things that he had been ordered not to talk about and other things he just couldn't tell anyone. The examiner reviewed a long written statement submitted by the Veteran. It was commented that the Veteran had clearly witnessed or experienced death or serious injury. He had responded to these events with intense fear and feelings of hopelessness. He had daily distressing recollections; he believed that he had participated in something that was wrong and that would haunt him for the rest of his life. He said that he had trouble sleeping, and would have nightmares, from which he would awaken sweating and looking for his weapon. He endorsed having flashbacks. He said that he had stopped drinking. He indicated that he responded to external reminders of the events, that he was startled by loud noises, and had anger directed at those he believed were disrespectful towards him. He had begun to avoid others, and did not want to discuss his service. He displayed a restricted range of affect, noting that he was not comfortable having loving feelings towards others. He had trouble sleeping, was irritable and prone to anger outbursts, had trouble concentrating, and was always on guard. The Axis I diagnoses were PTSD; depressive disorder; anxiety disorder; and intermittent explosive disorder. After reviewing all the relevant evidence of record, and after weighing the probative weight of that evidence, the Board finds that service connection for an acquired psychiatric disorder is warranted. The Board notes that the Veteran had experienced or witnessed in-service stressors related to "fear of hostile military or terrorist activity." He had stated that he had been exposed to sniper fire and IEDs and that during his service he was in constant fear of his life. The VA examiner indicated that the stressors were sufficient to result in the PTSD symptoms that the Veteran was displaying. The outpatient treatment records are replete with diagnoses of PTSD. Moreover, the March 2013 private psychologist, after reviewing the records and a statement concerning his stressors, diagnosed PTSD as well as depression and anxiety related to his service. Therefore, an "injury" was sustained in service and there is evidence of a current disability. While the VA examination performed in 2010 found that the Veteran had sufficient stressors to result in PTSD, the examiner, after testing, concluded that the Veteran did meet the criteria for PTSD or any other Axis I diagnosis. However, given the multiple diagnoses contained in the outpatient records, and in light of the extensive examination conducted in 2013 (which found that the Veteran did meet the criteria for PTSD), the Board finds that the VA examination's conclusions are not consistent with the other evidence of record. Therefore, greater probative weight will be accorded to the findings and conclusions of the 2013 examination. As a consequence, the Board concludes that service connection for an acquired psychiatric disorder, to include PTSD, depression and anxiety, is justified. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs