Citation Nr: 1526263 Decision Date: 06/19/15 Archive Date: 06/26/15 DOCKET NO. 09-19 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1967 to May 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction subsequently transferred to the Pittsburgh, Pennsylvania RO. The Board remanded this case in March 2011, May 2012, and April 2014. The Agency of Original Jurisdiction (AOJ) completed all requested development, but continued the denial of benefits sought on appeal. As such, this matter is properly returned to the Board for appellate consideration. In September 2010, the Veteran testified at a videoconference hearing before a Veterans Law Judge who is no longer employed by the Board. A transcript is associated with the claims file. Thereafter, the Veteran was offered the opportunity to have an additional hearing, which he declined in correspondence dated in May 2015. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Finally, as noted by the Board in its May 2012 and April 2014 remands, the Veteran raised a claim of entitlement to service connection for coronary artery disease, as due to presumed exposure to herbicides in connection with his service in the Republic of Vietnam. See February 2012 Post-Remand Brief. In its previous remands, the Board referred this issue to the AOJ for adjudication. To date, the issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is, once again, referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). FINDING OF FACT Resolving all doubt in his favor, the evidence shows that the Veteran has diagnoses of PTSD and major depressive disorder in conformance with the standards of DSM-IV; the Veteran's claimed in-service stressors are conceded; and the medical evidence of record links the diagnoses of PTSD and major depressive disorder to the in-service stressors. CONCLUSION OF LAW The criteria for establishing service connection for an acquired psychiatric disorder, diagnosed as PTSD and major depressive disorder, have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2014). REASONS AND BASES FOR FINDING AND CONCLUSION As the Board's decision to grant service connection for an acquired psychiatric disorder is completely favorable, no further action is required to comply with the VCAA and implementing regulations with respect to this claim. Under applicable law, service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1131 (West 2014); 38 C.F.R. § 3.303(a) (2014). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d) (2014). To establish entitlement to service connection for PTSD, the record must contain the following: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that a claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The provisions of 38 C.F.R. § 4.125(a) require that a mental disorder diagnosis must conform to the Fourth Edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV), or, for claims received by or pending before the AOJ on or after August 4, 2014, the Fifth Edition (DSM-5). See 38 C.F.R. §§ 4.125, 4.130; 79 Fed. Reg. 45093 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims, such as this one, that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. See 80 Fed. Reg. 53, 14308 (March 19, 2015). As such, this claim is governed by DSM-IV, and further discussion of applicability of the revised regulations is not necessary. In the present case, there is no dispute that the Veteran has a current, acquired psychiatric disability. Private and VA treatment records and VA examination reports consistently show diagnoses of major depressive disorder. However, there is conflicting evidence regarding whether the Veteran has a DSM-IV diagnosis of PTSD. In June 1993, the Veteran was afforded a VA PTSD examination. The Veteran reported seeing extensive combat during service in Vietnam. He indicated that since his time in the service, he has been plagued with chronic nightmares where he wakes up sweating all over and he jumps out of bed. He also reported flashbacks consisting of vivid images and memories of the time in Vietnam. The Veteran reported that helicopters and firecrackers can set him off. He admitted to an enhanced startle reflex and hypervigilance. He indicated that he never sits with his back to the door and he does not let people come behind him. The Veteran also reported that he started using drugs and alcohol in the military. He indicated that he has feelings of hopelessness and helplessness, where he wonders why his is here and feeling that he should not be here. The Veteran reported he has "never been able to get back on track since Vietnam. Since the Army I haven't been able to hold a job for any long time. Can't let people get in my face. I'm no longer any good one-on-one. I feel like I'm in a bottle and shaking up." The examiner diagnosed the Veteran with severe PTSD, major depressive disorder, and polysubstance abuse, in remission. The examiner concluded that the Veteran "suffers from severe [PTSD] and a concomitant major depression for which he is receiving treatment. In view of his current circumstances, I would anticipate continued severe psychological, occupational, and social functioning difficulties." In October 2005, the Veteran sought private mental health treatment. He reported difficulty keeping jobs and getting along with people. He also reported rumination about his Vietnam experiences. The Veteran indicated that he previously sought treatment through VA, but that it did not help. In November 2005, the Veteran underwent a private psychiatric evaluation. The Veteran initially reported that when he was in Vietnam, he never saw any dead bodies or people being shot. He then clarified that he "doesn't remember seeing any dead bodies or people shot implying that he may have blocked out memories of victims of conflict." The Veteran reported a vague sense of suspiciousness, fearfulness, anxiety, and emotional flatness, but he did not endorse flashbacks or avoidance of stimuli. The psychiatrist noted that the Veteran recently watched Saving Private Ryan and reported that he did not have an adverse reaction to the combat scenes. The psychiatrist diagnosed the Veteran with depressive disorder, anxiety disorder, and rule out personality disorder. The psychiatrist also indicated that he did not think that the Veteran met the criteria for PTSD. The Veteran was afforded a VA PTSD examination in January 2008. The Veteran reported four Vietnam-related stressors, including coming under sniper fire, being involved in a fire fight, participating in the TET Offensive, and experiencing a mortar attack while lying in a hospital tent. The VA examiner essentially disregarded the Veteran's statements based on a finding that "the [V]eteran's reports of his traumatic stressors appear to be somewhat vague and undetailed and it is noted that the [V]eteran reports 2 incidents that he has not previously reported in his stressor statements. The [V]eteran did not receive a combat infantry badge, despite his reports of being an infantryman in a combat unit." On psychological testing, the Veteran scored high on both the Mississippi Scale for Combat-Related PTSD and the Impact of Events Scale Revised. The VA examiner opined that the Veteran's scores were "excessive in light of his minimal reports of combat stressors." The VA examiner diagnosed the Veteran with "Depression, mild, recurrent, unrelated to military service" and "Alcohol dependence, in stable remission, unrelated to military service." During a March 2008 VA outpatient visit to establish care, the Veteran had a positive PTSD screening. He reported experiencing flashbacks and nightmares of his Vietnam experiences. In April 2008, a VA licensed clinical social worker diagnosed the Veteran with depressive disorder and PTSD. In May 2008, the Veteran underwent a VA behavioral health initial evaluation. The Veteran reported that he has difficulty being around people and that he "explodes" at people. He indicated that the trigger for his rage is "feeling unable to get away, feeling trapped, and feeling that someone is controlling him." He specifically related his rage to how he felt when he was in Vietnam when "everything was happening around [him] and [he] had no control." The Veteran reported that he had friends prior to going to Vietnam, but that he has had no friends after discharge from the Army. He stated that "everything changed when went into Vietnam." The Veteran endorsed symptoms of depression, feelings of hopelessness, and passive suicidal ideation. He also reported nightly nightmares where he sees the face of a deceased man that he saw in Vietnam, and he awakens in a cold sweat. The Veteran reported that he always feels like people are watching him and that when he walks into a room, he has to scan the room to see if there are cameras present or if someone is behind him. The Veteran was diagnosed with major depressive disorder, moderate, and rule out dysthymic disorder. In June 2008, a VA psychiatrist diagnosed the Veteran with mild to moderate major depressive disorder and rule out PTSD. In April 2009, the Veteran started seeing a different VA social worker. The Veteran reported that he avoids people out of a fear of becoming angry and losing his temper. The Veteran indicated that his anger stems from Vietnam experiences, "but he represses his memories and can't recall the horrors of combat. He says his brain just wouldn't be able to cope with the memories or just isn't ready." The Veteran also reported continuing nightmares, but he refused to discuss the content of the dreams or any combat experiences from Vietnam, stating that it was "too painful." The Veteran reported that the only person he has spoken to about Vietnam was his Vietnam veteran brother-in-law, but very briefly. The social worker noted that the Veteran became tearful when discussing Vietnam and appeared to be "holding back." The social worker indicated that the Veteran "does have the insight to recognize that his symptoms of road rage, hostility, agitation, avoidance of crowds, nightmares, rejection of authority, isolating, and hypervigilance stem from combat." A May 2009 VA social work treatment note shows that the Veteran reported nightly nightmares where he looks into the eyes of a deceased soldier. The Veteran also reported a nightmare where he hears the sound of a nearby mortar and feels terrified. The Veteran again indicated that "he has no interest in processing/discussing trauma experiences in Vietnam...he would just prefer to forget about it and deal with his present symptoms as best he can." In August 2009, the VA social worker diagnosed the Veteran with PTSD. In September 2009, the Veteran's VA psychiatrist changed the Veteran's diagnosis to mild depressive disorder, rule out bipolar disorder, and history of PTSD. In a May 2010 VA treatment note, the Veteran's social worker stated that the Veteran's "symptoms related to trauma in Vietnam are nightmares, agitation, hypervigilance, avoids crowds and people, loud noises, and several other triggers for flashbacks." The social worker also indicated that the Veteran "has a lot of guilt and shame about Vietnam and killing people. He also has survivor's guilt." In a June 2010 social work visit, the Veteran elaborated on his nightmares. He reported that he has nightmares of looking at a dead service member who was in his unit and was shot by a sniper. The Veteran reported that when he dropped for cover, he dropped on top of the dead service member and was looking into his face. The Veteran also reported that he feels guilty that he came back from Vietnam alive. In a September 2010 VA treatment note, the Veteran's social worker indicated that the Veteran "has several stressors from Vietnam that meet the criteria for PTSD that are documented in previous notes." The Veteran was afforded a VA PTSD examination in August 2011. The Veteran reported two Vietnam-related stressors. The Veteran described an incident when his unit was attacked by mortars. He reported that he has nightmares about the mortar tubes going off and that thinking about the attacks makes him feel helpless and not in control. He indicated that these symptoms started about four or five months after he left Vietnam, which resulted in him drinking. The VA examiner stated that the Veteran's "description of the event is rather vague overall. His description of how this affects him was inconsistent. Initially stating that it was memory of lying on the ground and later saying it was rather a feeling of helplessness." The examiner opined that "his description would not fulfill the stressor criterion for PTSD and there was no credible link to PTSD symptoms." The Veteran also reported an incident during the TET offensive when his unit was attacked by sniper fire and he took cover next to a deceased service member. The Veteran reported that he still sees the dead service member's face "like a movie running through my brain," and that he feels panicky. The VA examiner opined that this incident "would not fulfill diagnostic criteria as a stressor for PTSD." The examiner concluded that the Veteran did not fulfill the diagnostic criteria for PTSD because, "although he endorses a number of symptoms, his report is inconsistent and vague with respect to stressors and the frequency of occurrence of symptoms." The examiner indicated that the Veteran's inability to recall certain events related to Vietnam, such as the name of the dead service-member, "lead[s] one to question the veracity of his self-report." The examiner diagnosed the Veteran with major depressive disorder, unrelated to service. After considering the foregoing, the Board finds that the evidence is at least in equipoise on the issue of whether the Veteran currently has a diagnosis of PTSD in conformance with the DSM-IV. The Veteran was initially diagnosed with PTSD in June 1993 by a VA psychiatrist, and the Veteran testified at the September 2010 hearing that his symptoms have remained the same since that diagnosis. Additionally, during the pendency of this appeal, the Veteran was diagnosed with PTSD by two VA social workers, and the Veteran's treating VA psychiatrist changed his diagnosis from "rule out PTSD" to "history of PTSD" after reviewing the social work treatment notes. A PTSD diagnosis by a mental-health professional must be presumed to have been made in accordance with the applicable DSM criteria as to both the adequacy of the symptomatology and the sufficiency of the stressor absent compelling evidence to the contrary. Cohen v. Brown, 10 Vet. App. 128, 140 (1997); see also Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009) (holding that, in the absence of evidence to the contrary, medical professionals are presumed to be competent to render the diagnoses they render). The Board acknowledges that the January 2008 and August 2011 VA examiners found that the Veteran did not have PTSD. However, both examiners opined that the Veteran's claimed stressors did not meet Criterion A for PTSD, based, essentially, on findings that they did not occur. While the adequacy of a claimed in-service stressor to produce PTSD and the sufficiency of symptomatology to support a PTSD diagnosis are medical determinations, the occurrence of a claimed stressor is an adjudicatory determination. See Cohen v. Brown, 10 Vet. App. 128, 143-44 (1997). As discussed in detail below, the Veteran's combat-related stressors are conceded. Thus, the VA examiners' findings that the Veteran's statements regarding his combat experiences lacked credibility renders the opinions that the Veteran does not have PTSD related to the conceded stressors, at best, minimally probative. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). When the negative VA opinions are weighed against the Veteran's treatment records showing diagnoses of PTSD based upon the Veteran's consistent and credible reports of his combat experiences and his psychiatric symptoms, the evidence is in equipoise on the issue. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran currently has confirmed DSM-IV diagnoses of depressive disorder and PTSD. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As for the in-service stressor, generally 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 a 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). A veteran engaged in combat with the enemy if he "personally participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99 (October 18, 1999), 65 Fed. Reg. 6257 (2000); see also Sizemore v. Principi, 18 Vet. App. 264, 271-73 (2004). A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. VAOPGCPREC 12-99 (1999). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). 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 regarding the reported stressors will be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary. 38 C.F.R. § 3.304(f); see also, 38 U.S.C.A. § 1154(b); VAOPGCPREC 12-99. In this case, the Veteran contends that he suffers from a psychiatric disorder, including PTSD and major depressive disorder, as a result of especially traumatic events he experienced while serving as an infantryman in the Republic of Vietnam. Specifically, the Veteran reported witnessing the deaths of fellow servicemen, as well as experiencing mortar attacks and other combat situations while serving in Vietnam. The Veteran testified that during the first half of his deployment, while assigned to Company C as an ammunition bearer for a machine gun team, his unit would deploy by helicopter to the field, where they would "dig-in" to a base camp and patrol around the base camp for a few weeks before returning to their home base. The Veteran also testified that half-way through his deployment, he was transferred to Company E, where he served as a rifle gunner. See Hearing Transcript. On multiple occasions, including at both the January 2008 and August 2011 VA examinations, the Veteran described an incident where his unit was attacked by sniper fire while on patrol. The Veteran reported that a nearby soldier was killed by the sniper. When the sniper fired at the Veteran, he lay behind the dead soldier, who was hit again. During the January 2008 VA examination, the Veteran described another incident in which his unit was involved in a fire-fight and a soldier fell dead six feet in front of him. The Veteran also reported an incident that occurred during the TET Offensive, when his unit was being attacked nonstop, night and day. The Veteran reported that he jumped out of a helicopter into a rice patty with full equipment and was immersed in the mud. He reported that it took him several minutes to get air and that, although the landing zone was supposed to be "hot," it was not hot, "but that was all pretty traumatic." During the August 2011 VA Examination, the Veteran described an incident that occurred early in his deployment while he was standing in the chow line at a fire base. He reported that he heard mortar tubes in the distance and took off running for his fox hole. He stated that as he was running, a mortar hit not too far away and he saw a body fly by him. When he got to the fox hole, it was full of people, so he lay down in the sleeping area during the ten minute mortar attack, where he felt "helpless and ready to die." Finally, the Veteran reported an incident in which he was riding in the back of a truck, heading for the helicopters, when the truck hit a pothole and he was thrown from the truck. The Veteran reported that he was paralyzed and that he spent three days in the field hospital tent. The Veteran reported that he could not move while he was in the hospital tent, but that he could hear mortars coming in on several occasions. The Veteran's DD Form 214 and service personnel records confirm that his military occupational specialty was of that a light weapons infantryman and that he served in the Republic of Vietnam for 12 months from October 1967 to October 1968 with Company C, 1st Battalion, 26th Infantry Regiment, 1st Infantry Division, as an ammo bearer and a gunner. Service personnel records also show that the Veteran participated in the Vietnam Counter Offensive Phase III and the TET Counter Offensive and that the Veteran was awarded the Vietnam Service Medal and the Vietnam Campaign Medal. Although these awards are not indicative of participation in combat, the mere absence of awards or decorations that would confirm engagement in combat, as in the Veteran's case, does not preclude a finding that the claimant engaged in combat and the Board errs to the extent that it relies on the absence of awards to conclude that the claimant did not participate in combat. See Daye v. Nicholson, 20 Vet. App. 512, 517 (2006). An Operational Report of Lessons Learned dated in February 1968 shows that during October and November of 1967, the Veteran's unit, the 1-26th Infantry, was conducting air assaults into the assigned area of operation in order to "search out and destroy" enemy forces. The report shows that on November 1, 1967, the 1-26th Infantry received 175-200, 60 mm mortar rounds, resulting in one US service member wounded in action. Thereafter, small contacts and fighting continued until November 7, 1967, when the 1-26th Infantry "made heavy contact," resulting in 16 US service members killed in action and 21 US service members wounded in action. In August 2007, the Joint Services Records Research Center (JSRRC) verified the Veteran's stressor relating to coming under a mortar attack in November 1967. See August 2007 PTSD Stressor Corroboration Memorandum. Based on the foregoing, there is no dispute that the claimed in-service stressors of exposure to enemy mortar attacks, sniper attacks, and numerous military casualties are consistent with the places, types, and circumstances of the Veteran's service in the Vietnam war zone as an infantryman, and there is no clear and convincing evidence to the contrary. In fact, the record substantially corroborates the Veteran's account of his traumatic experiences in Vietnam, and the RO verified the claimed stressor of exposure to enemy mortar attacks based on official service department records. Therefore, the Board finds that the Veteran engaged in combat with the enemy and that his lay statements alone are sufficient to establish that the in-service combat stressors occurred. See 38 C.F.R. § 3.304(f)(2). Accordingly, no further corroborative evidence is necessary with regard to his claimed stressors, and his stressors are conceded for the purpose of this decision. Turning to the question of whether there is a nexus, or link, between the currently shown disability and the in-service stressors, the evidence shows that the Veteran's PTSD and depressive disorder have been linked to his experiences in service. The Veteran has consistently and credibly reported that his rage, social isolation, and substance abuse problems started while he was still in service, or immediately thereafter. See, e.g. February 1993 VA Treatment Note; September 2010 Hearing Transcript; August 2011 VA Examination Report. For example, a July 2009 VA social work treatment note shows that the Veteran reported that before going into Vietnam, he was "happy go lucky and outgoing, but when he returned he was withdrawn and really didn't want much to do with other people and the things that most people worried about seemed insignificant." Moreover, mental health treatment records from 1993 to the present consistently attribute the Veteran's symptoms to the traumatic events he experienced in service. See, e.g. July 1993 VA Examination Report. In February 1993, a VA psychologist noted that the Veteran started using drugs and alcohol in the military and that he had been abstinent from drugs and alcohol for the past 10 years. The psychologist then stated that "[i]t is likely that the ETOH and drug use masked significant psychological distress, that only emerged once he was totally abstinent." Additionally, the Veteran's mental health VA treatment records consistently discuss the Veteran's feelings and behaviors in conjunction with his experiences and memories of combat in Vietnam. See, e.g. May 2008 VA Treatment Record. Although the January 2008 and August 2011 VA examiners both concluded the Veteran's diagnosed major depressive disorder was unrelated to service, neither examiner provided a rationale for these opinions. In a June 2014 addendum opinion, a VA examiner opined that the Veteran's psychiatric disorder was did not have its onset during service because the Veteran was first diagnosed with a psychiatric disorder in 1993, which was "decades after the Veteran's service" and because the 1993 records gave "no indications that any psychiatric disorder was linked to the Veteran's service." Based on the foregoing, the Board finds that the evidence is at least in relative equipoise, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran's acquired psychiatric disorder is related to his service. In sum, the Veteran's claimed in-service stressors have been sufficiently corroborated, and he has been diagnosed with PTSD and depression. Additionally, the most probative medical evidence of record sufficiently relates the diagnosed PTSD and depression to the Veteran's military service, to include his confirmed stressors. Thus, resolving all reasonable doubt in the Veteran's favor, the criteria for entitlement to service connection for PTSD with major depressive disorder have been met. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs