Citation Nr: 1547678 Decision Date: 11/12/15 Archive Date: 11/25/15 DOCKET NO. 12-14 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from August 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a June 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In September 2015, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge, sitting at the RO. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran's claimed stressors indicate fear of hostile military or terrorist activity and are consistent with the places, types, and circumstances of his service. 2. Resolving all reasonable doubt in the Veteran's favor, the Veteran has a diagnosis of PTSD from a VA psychiatrist, that has been connected to his stressors. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 101(24), 1101, 1112, 1113, 1116, 1131, 1137, 1154, 5107 (West 2015); 38 C.F.R. §§ 3.301, 3.304(f) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION As the Board's decision herein to grant entitlement to service connection for PTSD on a direct basis is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014) and the implementing regulations. Service connection for PTSD requires medical evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). Effective July 13, 2010, the regulations governing adjudication of service connection for posttraumatic stress disorder (PTSD) were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. For cases pending before VA as of that date, 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 PTSD 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. For purposes of this paragraph, "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); see 75 Fed. Reg. 39843 (July 13, 2010). The Veteran contends that he has PTSD that is a result of in-service stressors related to combat, such as being shot in the helmet, but not injured, and sustaining injuries that were "no big deal" during a mortar attack. He is receiving service-connected benefits for anxiety disorder NOS, but benefits for PTSD were denied due to lack of diagnosis. A May 2010 VA examiner diagnosed anxiety disorder NOS as due to the Veteran's reported in-service stressors, and the occurrence of the stressors was presumed by the examiner and the RO in granting service connection for that disability. The Board also finds that these stressors are verified under the revised VA regulations. In this regard, VA mental health treatment notes reflect a diagnosis of PTSD, including a January 2010 note signed by Dr. Cua. Dr. Cua's signature does not identify his specialty or credentials, but the Veteran submitted a copy of Dr. Cua's business card which reveals him to be a VA staff psychiatrist. In the January 2010 treatment note, Dr. Cua states that the Veteran has a diagnosis of PTSD on the basis of findings of a mental status examination. He notes that the Veteran was exposed to life-threatening conditions in Vietnam, including being shot at and knocked down by mortars. Consequently, the Veteran's stressors represent fear of hostile military or terrorist activity sufficient to support a diagnosis of PTSD, which establishes his stressors as verified. 38 C.F.R. § 3.304(f). Moreover, the Board finds that the Veteran at least as likely as not has or had during the appeal period a diagnosis of PTSD. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (holding that service connection may be granted if a disability existed at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolved prior to the Secretary's adjudication of the claim). A November 2009 letter from a social worker indicates that she determined that the Veteran had a diagnosis of PTSD. She diagnosed PTSD due to the Veteran exhibiting the following symptoms: recurrent and intrusive combat-related thoughts, nightmares and night sweats, flashbacks of his combat days, difficulty staying asleep, isolation from others, and exaggerated startled response. The May 2010 VA examiner found that the Veteran does not meet the criteria for a PTSD diagnosis and indicated that the social worker only identified four symptoms, which was insufficient for a diagnosis of PTSD. The examiner then diagnosed anxiety disorder NOS, which he associated with the Veteran's reported stressors. However, as reflected above, the social worker actually identified six symptoms associated with the Veteran's PTSD, some of which are symptoms the VA examiner did not identify. Further, there is the PTSD diagnosis by Dr. CUA. Prior to August 4, 2014, the provisions of 38 C.F.R. § 4.125(a) required that a diagnosis of a mental disorder conform to the Diagnostic and Statistical Manual, Fourth Edition (DSM-IV). 80 Fed. Reg. 14,308 (Mar. 19, 2015). While it is apparent from the May 2010 VA examination report that the examiner considered the Veteran's symptoms in light of the DSM-IV criteria for PTSD, both as exhibited at the examination and as noted in the November 2009 letter from the social worker, the Board has no basis for determining that Dr. Cua's diagnosis did not conform to the diagnostic criteria under DSM-IV and, in fact, the diagnosis should be presumed to be in accordance with DSM-IV criteria. See Cohen v. Brown, 10 Vet. App. 128 (1997). Further, the Board cannot be certain to a greater than 50 percent probability that the social worker's letter listed all the symptoms she noted in diagnosing the PTSD and that her formal diagnosis did not consider whether the Veteran's symptoms met all criteria necessary for a PTSD diagnosis. Consequently, the Board determines that the evidence in favor of finding that the Veteran has met the diagnostic criteria for PTSD during the appeal period is in equipoise. Therefore, resolving all reasonable doubt in the Veteran's favor, the Veteran has PTSD as a result of a verified in-service stressor, and the claim for service connection is granted. 38 U.S.C.A. § 5107 (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs