Citation Nr: 1525428 Decision Date: 06/15/15 Archive Date: 06/26/15 DOCKET NO. 13-29 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). ATTORNEY FOR THE BOARD A. Larson, Associate Counsel INTRODUCTION The Veteran had active duty service from July 1964 to July 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. The Board notes that the RO mistakenly believed that the Veteran did not perfect an appeal regarding the June 2009 denial. It then construed subsequent statements as a new claim for benefits based on the submission of new and material evidence. However review of the claims file indicates the Veteran submitted a statement in March 2010 that should have been construed as a timely appeal to the February 2010 Statement of the Case (SOC). Thus, his original claim was never final and the Veteran does not need to submit new and material evidence to first reopen this claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran's claimed stressor is related to the fear of hostile military activity. 2. The Veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 3. Both a VA mental health professional and a private mental health professional have confirmed that the Veteran's claimed stressor is adequate to support a diagnosis of PTSD, and totality of the evidence indicates the Veteran's symptoms of PTSD are related to the claimed in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION In this decision, the Board grants entitlement to service connection for PTSD, which constitutes a complete grant of the Veteran's claim. Therefore, no discussion of VA's duty to notify or assist is necessary. Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). A veteran may be granted service connection for any disease initially diagnosed after discharge, but only if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994)), (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. See 38 C.F.R. §3.304(f). If a stressor claimed by a veteran is related to a 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 a veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of a veteran's service, then the requirement for corroborating the stressor is eliminated. See 38 C.F.R. § 3.304(f)(3). "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. Id. Under the benefit-of-the-doubt rule embodied in 38 U.S.C.A. § 5107(b), in order for a claimant to prevail, there need not be a preponderance of the evidence in the veteran's favor, but only an approximate balance of the positive and negative evidence. In other words, the preponderance of the evidence must be against the claim for the benefit to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1994). The Veteran asserts that he has PTSD as a result of stressors he experienced during his service in Vietnam. Specifically, he reports that as a combat medic he had to care for seriously wounded, dying soldiers before they passed, many of whom died in his arms. He further described experiencing mortar and rocket attacks, as well as witnessing a fellow solider die in front of him. Unfortunately, the Veteran's service records could not be located and the RO issued a formal finding on their unavailability in February 2009. However, the Board finds the Veteran's reports of his in-service statements competent and credible. His DD-214 confirms he was a medic specialist and that he was awarded the Vietnam Service Medal. In support of his claim, the Veteran submitted two private mental evaluations. The first is dated November 2010. The report contains was performed by a psychiatrist. It contains an extensive history of the Veteran's psychiatric condition, including his reported in-service stressors of experiencing mortar and rocket fire, the constant treatment of dying soldiers, and witnessing the death of a solider at the hands of "peer soldiers." The examiner diagnosed him with PTSD and severe major depressive disorder. The examiner then concluded that the Veteran's stressors were the etiological cause of his PTSD, "together with a fear of hostile military or terrorist activity." The second private report is dated in June 2013 and was performed by a psychologist. The Veteran's stressors of experiencing heavy enemy fire and treating dying soldiers were recorded. The report summarizes relevant recent mental health treatment. The examiner then administered the PCL-M PTSD checklist and determined the Veteran scored in a manner similar to normative veteran samples known to have severe symptoms of PTSD. In the "Summary and Formulation" section of the report, the examiner stated that the Veteran's symptoms meet the DSM-IV criteria for PTSD and depressive disorder. The examiner then concluded that it was at least likely as not that the PTSD was due to or a result of his traumatic experience of witnessing the deaths and injuries of his fellow soldiers while on active duty. The Veteran also underwent a VA compensation examination in January 2011. The examiner found he did not meet the DSM-IV criteria for a diagnosis of PTSD, as he did not fulfill the symptom criteria for "persistent avoidance of the stimulus." However, the VA examiner did state that the Veteran met the DSM-IV stressor criteria for PTSD, as well as the symptom criteria for persistent re-experiencing the traumatic event and hyper-arousal. He had another VA examination in September 2013. This examiner also opined that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The examiner further opined that the Veteran's major depressive disorder was not related to his active duty service. The rationale provided was consisted largely of the lack of psychiatric complaints or treatment in service or within one year of discharge. However the examiner did not comment on any lay evidence of record, including the Veteran's reports or the submitted buddy statements which attested to a change in the Veteran's behavior. Furthermore, the examiner incorrectly stated the Veteran began treatment for a mental health condition in 2009, when there is a February 1995 VA treatment record documented nervousness and flashbacks. For these reasons, this examination is afforded less weight than the others of record. The Board finds that the Veteran's claimed stressor is consistent with the places, types, and circumstances of his service during the Vietnam era, and there is no clear and convincing evidence to the contrary. See 38 C.F.R. § 3.304(f)(3). Thus, given that the November 2010 private psychiatrist found this related to the Veteran's fear of hostile military activity and the January 2011 VA examiner found the stressor sufficient to support the diagnosis of PTSD, the Veteran's lay testimony alone establishes the occurrence of his claimed in-service stressor. Id. Assigning great weight to the two private opinions of record, the Boards finds that the above evidence is in at least a state of equipoise as to whether the Veteran has PTSD related to his competently and credibly reported in-service stressors. Accordingly, all reasonable doubt is resolved in the Veteran's favor, and his claim for service connection for PTSD is granted. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs