Citation Nr: 1612428 Decision Date: 03/28/16 Archive Date: 04/07/16 DOCKET NO. 15-04 505 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Sparker, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1968 to January 1971. He served in the infantry and earned the Combat Infantryman's Badge (CIB) and a Bronze Star for his service. He was honorably discharged. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT The Veteran's acquired psychiatric disorder, including PTSD, is medically linked to a verified stressor during active military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder to include PTSD are satisfied. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims entitlement to service connection for PTSD. For the following reasons, the Board finds that service connection is established. Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (west 2014); 38 C.F.R. § 3.303(a) (2015). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2015). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "medical nexus" between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303(a). Specific to claims for PTSD, there must be medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (2015), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2015). The regulation also specifies circumstances in which a claimant's lay testimony alone may be sufficient to establish the in-service stressor. See § 3.304(f)(1)-(4). Service connection may be established on a presumptive basis for the chronic diseases listed in 38 C.F.R. § 3.309(a), including psychoses. 38 C.F.R. §§ 3.303(b), 3.307, (2015); see Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). Under 38 C.F.R. § 3.384, a "psychosis" includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to general medical condition, psychotic disorder not otherwise specified (NOS), schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. As PTSD is not defined as a psychosis under § 3.384, and the Veteran has not been diagnosed with or otherwise shown to have a psychosis or any of the disorders categorized as psychoses under § 3.384 during the pendency of this claim, the presumptive provisions applicable to chronic diseases do not apply. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a) (2015); see also Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). With regard to evidence of a diagnosis of PTSD, in accordance with 38 C.F.R. § 4.125(a), this regulation provides that, for VA purposes, all mental disorder diagnoses must conform to the Fourth Edition of the American Psychiatric Association 's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS (DSM-IV). (The Board notes that the DSM-IV has recently been updated with a Fifth Edition (DSM-5), and VA has issued an interim final rule amending certain provisions in the regulations, including § 4.125, to reflect this update. 79 Fed. Reg. 45093. The amendments only apply to applications that are received by VA or are pending before the agency of original jurisdiction on or after August 4, 2014, and do not apply to appeals already certified to the Board or pending before the Board. Id.). The service personnel records reflect that the Veteran served in Vietnam and was awarded the CIB and the Bronze Star Medal in addition to other awards. Receipt of these awards is sufficient to establish that he engaged in combat with the enemy for the purposes of the relaxed evidentiary standard accorded combat-related injuries under 38 U.S.C.A. § 1154(b). See VAOPGCPREC 12-99 (65 Fed. Reg. 6,257 (2000); see also Manual of Military Decorations and Awards (Department of Defense, September 1996). When an injury is incurred in combat, satisfactory lay or other evidence will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2014); 38 C.F.R. § 3.304(d) (2015); Collette v. Brown, 82 F.3d 389, 393 (Fed.Cir.1996). This presumption is rebuttable only by clear and convincing evidence. Collette, 82 F.3d at 393. Whether the combat presumption under section 1154(b) applies requires a "three-step, sequential analysis." Collette, 82 F.3d at 393. The Board must first determine whether the veteran "has proffered 'satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease.'" Id. If so, then the Board must determine "whether the proffered evidence is 'consistent with the circumstances, conditions, or hardships of such service.'" Finally, "if these two inquiries are met, the Secretary 'shall accept' the veteran's evidence as 'sufficient proof of service-connection,' even if no official record of such incurrence exists." Id. at 393 (quoting 38 U.S.C.A § 1154(b)). While service connection for a combat-related injury may be based on lay statements alone, there must still be competent evidence of a current disability and a nexus to service in order to establish entitlement to compensation benefits. See Shedden, 381 F.3d at 1166-67 (observing that "the mere fact that a [veteran] has suffered a service-connected disease or injury does not automatically lead to compensation for future disabilities. . . [T]he veteran seeking compensation must still show the existence of a present disability and that there is a causal relationship between the present disability and the injury, disease, or aggravation of a preexisting injury or disease incurred during active duty"); Libertine v. Brown, 9 Vet. App. 521, 522-23 (1996) (holding that U.S.C.A. § 1154(b) can be used only to provide a factual basis upon which a determination could be made that a particular disease or injury was incurred or aggravated in service, and not to link the claimed disorder etiologically to a current disorder); see also Huston v. Principi, 18 Vet. App. 395, 402 (2004); Clyburn v. West, 12 Vet. App. 296, 303 (1999); Beausoleil v. Brown, 8 Vet. App. 459, 464 (1996). The Board has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Allday v. Brown, 7 Vet. App. 517, 527 (1995). The Board must assess the credibility and weight of the evidence, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Here, the service connection elements for PTSD are satisfied. The Veteran experienced a verified in-service stressor, he has a current diagnosis of PTSD, and the record supports the causal relationship between the verified stressor and the current diagnosis of PTSD. Because the evidence is at least in equipoise, the Veteran's claim for service connection for PTSD will be granted. The Veteran has a verified stressor. He served in Vietnam and received the CIB and Bronze Star Medal for his service. Therefore, he is entitled to the combat presumption located in 38 C.F.R. § 3.304(f). In his lay statements, he described two instances from combat; one when he was sent to recover the remains of pilots after they were shot down in enemy territory, the other when he witnessed friend killed as a result of an enemy ambush. As his lay statements describing his combat experiences are consistent with the circumstances, conditions, and hardships he experienced in combat as described in the official unit history, the Board finds that the stressor element is satisfied. See 38 C.F.R. § 3.304(f). The Veteran has a current diagnosis of PTSD. He was first diagnosed with PTSD in October 2012 by VA licensed mental health counselor. The counselor categorized the Veteran's PTSD as chronic and combat related. He was also diagnosed with recurrent major depressive disorder. A January 2013 private opinion corroborated the October 2012 diagnosis. Richard F. Brown, Ph.D., a licensed psychologist and neighbor of the Veteran submitted a letter stating that the Veteran had "classic PTSD" who suppressed his symptoms and compensated for it by isolation and profound obsessions of work, working out, and periodic alcohol abuse. The Veteran was afforded a VA examination in March 2013. The VA examiner again diagnosed the Veteran with PTSD and also diagnosed him with generalized anxiety, major chronic depression, and depersonalization disorder. The examiner noted that it was not possible to differentiate the symptoms of each disorder as they all have similar symptoms. Dr. Brown submitted another evaluation of the Veteran in July 2013. After reviewing the Veteran's service and VA records and conducting a clinical and community evaluation of the Veteran, Dr. Brown again diagnosed the Veteran with PTSD and related it to his combat service. He noted the Veteran's combat incidents caused powerful memories and nightmares that have continued since leaving active service. In June 2014, the Veteran was admitted to an inpatient treatment program because he was at risk of suicide. He reported that he had been struggling with symptoms of PTSD and depression with suicidal ideations resulting in weight loss, feelings of hopelessness, and suicidal ideations combined with searching for a firearm in response to an argument with his wife. The examiner assessed the Veteran to be at high risk of suicide and recommended activation of a patient record flag. A VA physician diagnosed the Veteran with combat related PTSD in July 2014. He noted the Veteran reported that since Vietnam, he experienced chronic depression, intermittent hopelessness, intermittent suicidal ideations, anxiety, anger, isolation, intrusive recollections, and sleep disruption. The forgoing diagnoses of PTSD are presumed to accord with the DSM-IV criteria, and were rendered during the pendency of this claim. Cohen v. Brown, 10 Vet. App. 128, 139-42 (1997). Conversely, there is one unfavorable medical opinion provided by a VA examiner regarding whether the Veteran has a current diagnosis of PTSD, but the probative value offered by that opinion is significantly outweighed by the foregoing medical evidence supporting a current diagnosis of PTSD related to his in-service stressors. In a January 2014 VA examination, the examiner declined to diagnose the Veteran with PTSD. After review of the Veteran's claims file and an in person examination, the examiner noted that the Veteran's condition was less likely than not incurred in or caused by the claimed in-service injury. He opined that the Veteran's presentation and symptoms were most consistent with an adjustment disorder with anxiety and depression, and obsessive compulsive personality traits. He further noted that although the Veteran did endorse a number of PTSD symptoms, including a counting preoccupation and voluntary devotion to finding additional information would strongly indicate that rather than contribute to his discomfort, the examiner opined that re-experiencing his combat events had some positive and intrinsic value for him. The Board finds that any probative value offered by the January 2014 opinion is outweighed by the voluminous medical evidence showing that the Veteran has combat related PTSD. Of note, the January 2014 examiner thought the Veteran's symptoms were most consistent with other psychiatric conditions rather than PTSD. However, as the March 2013 VA examiner noted, a trained professional found it difficult to determine which of the Veteran's symptoms were attributable to his PTSD because they were similar to the Veteran's other psychiatric conditions. However, given the consistency of the diagnosis by several different medical professionals forming a medical consensus, both private and VA, the weight of the medical evidence tends to show that the Veteran does in fact have PTSD. Therefore, the current diagnosis element is satisfied. Finally, there is a medical nexus between the verified in-service stressors and the Veteran's current PTSD diagnosis. Several examiners noted that the Veteran had PTSD symptoms. The October 2012 VA examiner noted that the Veteran's PTSD was combat related. Dr. Brown's January and July 2013 opinions relate the Veteran's PTSD to his combat service. The July 2014 VA examiner stated that the Veteran's PTSD was combat related. Indeed, nearly each of the favorable medical opinions noted the Veteran's combat related nightmares, flashbacks, anxiety, and other symptoms of PTSD, and then went on to diagnose him with PTSD. Therefore, the Board assigns significant probative value to these opinions. Moreover, while the October 2012, March 2013, and July 2014 VA examiners diagnosed the Veteran with PTSD, Dr. Brown, a private psychologist who was his neighbor also diagnosed him with PTSD and related it to combat. Given the familiarity between the private psychologist and the Veteran, the Board assigns more weigh to his opinion regarding the nexus between the Veteran's combat and his current PTSD. There is an unfavorable VA medical opinion in the record. However, the Board notes that the unfavorable VA opinion did not turn on a lack of a nexus. Rather, that opinion turned on a lack of a current PTSD diagnosis. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that a medical nexus exists between the Veteran's PTSD and the verified stressors incurred in service. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55; 38 C.F.R. § 3.304(f). Because all three service connection elements are satisfied, service connection for an acquired psychiatric disorder to include PTSD is granted. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; 3.304(f); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (holding that when the evidence is in relative equipoise, the claimant prevails). ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs