Citation Nr: 1619182 Decision Date: 05/12/16 Archive Date: 05/19/16 DOCKET NO. 13-08 067 ) 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 Veteran represented by: Matthew D. Hill, Attorney at Law ATTORNEY FOR THE BOARD B. Garcia, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1970. This case is before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a VA Form 9 filed in March 2013, the Veteran expressed his desire for a Board videoconference hearing. However, as set forth in submissions from the Veteran's attorney dated in October 2013 and April 2016, the Veteran indicated his desire to withdraw his hearing request. Accordingly, the Board considers the Veteran's request for a Board hearing withdrawn. See 38 C.F.R. § 20.704(e) (2015). The record reflects that in October 2013, after the January 2013 Statement of the Case was issued, the Veteran's attorney submitted a brief and additional evidence in support of the Veteran's claim, including a September 2013 mental disorders disability benefits questionnaire (DBQ) and psychiatric evaluation from private psychiatrist E. Taitt, and excerpts from the Veteran's VA treatment records. The Veteran's attorney noted that the Veteran specifically waived consideration of the evidence and argument by the RO. As the Veteran's representative indicated, in writing, that the Veteran waived initial review of this evidence by the Agency of Original Jurisdiction (AOJ), the Board may adjudicate the claim with no prejudice to the Veteran. See 38 C.F.R. § 20.1304(c). FINDINGS OF FACT 1. There is an approximate balance of positive and negative evidence as to whether the Veteran has a current diagnosis of PTSD. 2. There is an approximate balance of positive and negative evidence as to whether the Veteran has PTSD as a result of an in-service stressor. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and to assist veterans in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). In this case, the Board is granting the benefit sought on appeal. Therefore, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was not prejudicial to the Veteran and will not be discussed further. II. Entitlement to Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a); see also 38 C.F.R. § 3.303(d) (providing that service connection may be granted for any disease diagnosed after discharge when all the evidence establishes that the disease was incurred in service). To establish service connection for PTSD, the record must contain: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link between current symptoms and an in-service stressor, as established by medical evidence; and (3) credible supporting evidence that the claimed in-service stressor occurred. See §§ 3.304(f), 4.125(a); see also, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004) (detailing the general criteria for service connection). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, or if a claimed stressor is based on a fear of hostile military or terrorist activity and a designated psychiatrist or psychologist 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 that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304(f)(2)-(3); see also 38 U.S.C.A. § 1154(b). Determinations regarding service connection are based on a review of all of the evidence in the record, including all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). Under certain circumstances, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering evidence and determining its probative value, VA considers both the competency and the credibility of the witness. See Layno, 6 Vet. App. at 469. To prevail, a claimant need only demonstrate that there is an approximate balance of positive and negative evidence. See Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Thus, to deny a claim for benefits on its merits, the preponderance of the evidence must be against the claim. See, e.g., id. Factual Background The Veteran is seeking service connection for PTSD. As set forth in a January 2007 VA Form 21-0781, Statement in Support of Claim for Service Connection for PTSD, as well as statements dated in March 2006, January 2007, November 2009, and December 2009, the Veteran contends that although his military occupational specialty was cook, he was exposed to mortar fire while stationed at the Cu Chi Base Camp in Vietnam between December 1967 and December 1968, and saw fellow soldiers seriously wounded or killed in action. The Veteran also reported a friend and fellow soldier being killed by a sniper while stationed in Dau Tiang, Vietnam from July 1969 to July 1970. Further, the Veteran maintains that he has experienced PTSD symptoms since returning from active service, including nightmares involving traumatic events in Vietnam, night sweats, anger, flashbacks, and panic attacks. Additionally, a December 2009 letter from the Veteran's wife describes a history of the Veteran experiencing depressive symptoms, nightmares, depression, and acting out toward others, including an occasion during which the Veteran hit and "knocked out" her aunt. According to the Veteran's personnel records, he was stationed in Vietnam from December 14, 1967 to December 13, 1968, and from July 21, 1969 to July 6, 1970. According to an August 2007 response from the Defense Personnel Records Image Retrieval System, a January 31, 1968 Daily Staff Journal submitted by the 25th Infantry Division verified several instances of mortar fire at the Cu Chi Base Camp. In a May 1967 report of medical history on entrance into service, the Veteran denied any history of psychiatric symptoms, including depression or excessive worry, or nervous trouble of any sort. In a May 1967 report of medical examination, the Veteran was clinically evaluated as normal with respect to any psychiatric issues. The Veteran's service treatment records are negative for complaints of, or treatment for, psychiatric symptoms. A July 1970 physical and mental status report on release from active service provides that the Veteran was considered physically qualified for separation and for re-enlistment without re-examination; while the report provides aptitude scores, it does not contain any findings regarding the Veteran's mental status. Private treatment records from Brighton Hospital provide that the Veteran received inpatient treatment for substance abuse from December 2003 to January 2004. The Veteran's diagnoses on discharge from the treatment program included history of PTSD, cocaine dependence, and major depressive disorder. The Veteran was afforded a VA PTSD examination in October 2007. The examination report notes several hospitalizations for a mental disorder, including hospitalizations in 1976 and 1980; the Veteran reported that he was admitted both times because he was a "nervous wreck." The examination report also notes that the Veteran was hospitalized at a civilian hospital in 2005 for "drug abuse." The examiner found that based on the Veteran's reports of exposure to mortar fire during his service in Vietnam, in particular, at the Cu Chi Base Camp, he met the DSM-IV stressor criterion based on combat experience. The examiner found that the Veteran had persistent re-experiencing of the traumatic event, persistent avoidance of stimuli associated with the trauma, numbing of general responsiveness, and persistent increased arousal. The examiner opined that the Veteran's onset of symptoms was chronic and that disturbance(s) caused clinically significant distress or impairment in social, occupational, or other areas of functioning. With respect to PTSD criterion B, the examiner noted that in the week prior, the Veteran experienced intrusive memories of Vietnam and upsetting memories triggered by events twice, and he experienced single instances of nightmares and flashbacks. As for PTSD criterion C, the examiner indicated that there was marked avoidance of thinking about Vietnam in the week prior to the examination. With respect to PTSD criterion D, the examination report noted mild hypervigilance while in public. The examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD, as he only endorsed a single avoidance and numbing symptom from criteria C, while the threshold was at least 3 symptoms, and he only endorsed a single increased arousal symptom from criteria D, while the threshold was at least 2 symptoms. Although the examiner did not find that the Veteran met the diagnostic criteria for PTSD, the examiner provided a diagnosis of adjustment disorder with depressed mood, noting that it was not severe enough to impair social or occupational functioning. The Veteran's GAF score was 75. According to an April 2010 VA examination report, the Veteran met the DSM-IV stressor criterion for PTSD based on his exposure to a combat zone during his service in Vietnam. However, the examiner found that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. Instead, the examiner provided Axis I diagnoses of adjustment disorder with depressed mood and polysubstance abuse (in remission), and with respect to Axis II, the examiner noted that the Veteran had antisocial personality traits. The Veteran's GAF score was 72. Although the examiner found that the Veteran had various PTSD symptoms, the examiner opined that the Veteran's re-experiencing symptoms were cue-related, and avoidance symptoms did not meet the PTSD diagnostic criteria due to only one symptom being endorsed at a mild level of effort. The examiner noted that the Veteran reported mild hypervigilance and occasional startle response and opined that sleep impairment could not be linked to past trauma exposure, though he did not provide a rationale for this conclusion. According to the examiner, results of the CAPS and Mississippi Scale assessments did not support a diagnosis of PTSD. The examiner stated that Compensation and Pension exams for PTSD service connection require the use of a structured interview which allows for frequency and intensity of symptoms to be quantified, and the Clinician Administered PTSD Scale for the DSM IV (CAPS) is the recommended interview scale due to validity data. The examiner continued that the Mississippi Scale or other instruments can be used according to the discretion of the examiner to support the diagnosis as a quantitative instrument. With respect to documented diagnoses of PTSD in the Veteran's VA treatment records, the examiner concluded that it would be speculative to explain any discrepancies without review of how the treating physicians derived their diagnoses with supportive testing or interview scales. The examiner added that reports of isolated PTSD symptoms are not sufficient to make a DSM-IV diagnosis. According to the DBQ and psychiatric evaluation completed by private psychiatrist E. Taitt in September 2013, the Veteran's diagnoses included chronic PTSD with an onset date of 1970, alcohol dependence in full sustained remission, cannabis dependence in full sustained remission, and cocaine dependence in full sustained remission; the Veteran's GAF score was 50. The Veteran reported the onset of psychological symptoms in 1970, soon after separation from service. According to the Veteran, his first symptom was nightmares with combat themes, which was followed by the onset of other symptoms, including dysphoria, anxiety, irritability, mood swings, autonomic hyperactivity, easy startle, night sweats, flashbacks, and panic attacks. The Veteran connected the onset of his symptoms with traumatic experiences that occurred during his service in Vietnam, including being subject to mortar fire at the Cu Chi Base Camp. The Veteran reported the presence of symptoms for 43 years with unusually severe symptoms during the 6 years prior. The examiner noted that the Veteran's history was found to be reliable and internally consistent. According to the DBQ examiner, the Veteran had severe psychological symptoms of PTSD and met the full DSM-IV requirements for PTSD. Moreover, she opined that the Veteran's PTSD started as a result of his combat-related experiences in the Republic of Vietnam, as he experienced a life-threatening stressor. The examiner provided that the Veteran had dysphoria, anxiety, irritability, and impulsive and angry outbursts, a shortened sense of future, autonomic hyperactivity, easy startle, frequent panic attacks, agoraphobia, and combat-related flashbacks and nightmares up to four times a week. The examiner maintained that the Veteran had poor impulse control, noting the incident in which the Veteran rendered his wife's aunt unconscious with a blow. The Veteran exhibited social withdrawal and poor concentration. The examiner noted past suicide attempts, adding that the Veteran had suicidal ideations as recently as 2 days prior to the evaluation. The DBQ examiner also appeared to discount the VA examination findings. The examiner opined that the Veteran met the full criteria for PTSD at the time of the October 2007 and April 2010 VA examinations, despite the VA examiners' findings. The DBQ examiner suggested that the April 2010 examiner failed to consider the Veteran's relevant medical history, as the April 2010 examination report notes that the Veteran had no prior psychiatric hospitalizations or suicide attempts despite the Veteran's documented reports of inpatient treatment and suicide attempts. The DBQ examiner noted that although the Veteran's GAF score was 72 at the April 2010 VA examination, psychiatric treatment records revealed that the Veteran's GAF was never higher than 62 at any VA mental health treatment, and in the 12 months prior, there was no evidence of a GAF higher than 50. According to the examiner, the Veteran had severe symptoms of PTSD since November 2009, which had a severe impact on his social and occupational functioning. The examiner opined that the Veteran had occupational impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and/or mood, noting that the Veteran had trouble starting and finishing simple self-care tasks and following simple instructions. The Board observes that VA psychology and psychiatry treatment records dating from September 2008 to January 2013 include diagnoses of chronic PTSD and reflect that the Veteran regularly discussed his service in Vietnam, in addition to combat-related nightmares and flashbacks. The Veteran's VA treatment records also indicate a history of intermittent suicidal ideations, panic attacks, sleep disturbance, intrusive memories about Vietnam, irritability, and depressive symptoms. The Veteran's treating providers have noted that the Veteran's self-reported polysubstance abuse has been in full sustained remission since 2004. Analysis As noted above, to establish service connection for PTSD, there must be evidence of: (1) a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) a link between current symptoms and an in-service stressor, as established by medical evidence; and (3) credible supporting evidence that the claimed in-service stressor occurred. See §§ 3.304(f), 4.125(a). As an initial matter, the RO conceded a military stressor in the January 2013 Statement of the Case, as the record showed that the Cu Chi Base Camp in Vietnam was mortared with resulting deaths and injuries. Thus, the required element of an in-service stressor is met. See § 3.304(f). The Board must therefore consider whether there is a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), and if so, a link between current symptoms and the Veteran's in-service stressor. See §§ 3.304(f), 4.125(a). The Board notes that there are conflicting medical opinions as to whether the Veteran has a current diagnosis of PTSD. As detailed above, the October 2007 and April 2010 VA examiners concluded that the Veteran did not meet the diagnostic criteria for PTSD. The Board observes that Dr. Taitt's medical opinion does not mention whether CAPS or the Mississippi Scale was used, which was noted by the VA examiners to be the recommended interview scale due to validity data. However, as set forth in the September 2013 DBQ, Dr. Taitt noted that the Veteran appeared to have met the full diagnostic criteria for PTSD at the time of these examinations. The DBQ examiner pointed to the fact that the Veteran's GAF score at the time of the April 2010 VA examination was inconsistent with previous GAF scores, and he opined that the psychometric testing was misused to invalidate a diagnosis of PTSD despite multiple treatment records showing treatment for PTSD and statements from the Veteran and his wife demonstrating years of PTSD symptoms. Moreover, as noted in the DBQ examiner's psychiatric evaluation, it appears that the April 2010 VA examiner may not have considered the Veteran's relevant medical history in rendering her diagnoses. Specifically, the April 2010 examiner noted that the Veteran did not have a history of previous hospitalizations for a mental disorder, or a history of suicide attempts, even though the Veteran had reported past inpatient treatment and suicide attempts, including during the October 2007 VA examination. In rendering a PTSD diagnosis, and an opinion regarding the October 2007 and April 2010 VA examiners' findings, the DBQ examiner relied on pertinent medical documents, including VA mental health treatment records, and a thorough evaluation and clinical interview of the Veteran. As such, although it is not clear from the record what testing was used to support the diagnosis of PTSD, the DBQ examiner's diagnosis and opinions appear to be both fully informed and reliable. In addition to the September 2013 DBQ and psychiatric evaluation report, VA psychology and psychiatry treatment records dating from September 2008 to January 2013 include continued diagnoses of PTSD. Further, these PTSD diagnoses were rendered by VA psychologists and psychiatrists who treated the Veteran over periods of time ranging from several months to over 2 years. Given the DBQ examiner's rationale for rendering a PTSD diagnosis and the VA mental health providers' familiarity with the Veteran's psychiatric disorder due to treatment and counseling over extended periods of time, the Board affords more probative value to their PTSD diagnoses than the opinions of the VA examiners, particularly in light of the GAF-related inconsistency noted above and the April 2010 examiner's possible failure to consider the Veteran's pertinent medical history. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). As such, the Board concludes that the medical evidence of record establishes a current diagnosis of PTSD. See 38 C.F.R. §§ 3.304(f), 4.125(a). The Board also finds that there is medical evidence establishing a link between the Veteran's current symptoms and his in-service stressor. Although the April 2010 VA examiner opined that the Veteran's PTSD was not a result of combat-related experiences, this opinion was based on the fact that the examiner did not render a PTSD diagnosis. However, as set forth in the September 2013 psychiatric evaluation, the DBQ examiner opined that the Veteran's PTSD started a result of his combat-related experiences in Vietnam. Based on the Veteran's reported history, which was found to be reliable and internally consistent, he first experienced the onset of psychological symptoms in 1970, specifically, nightmares with combat-related themes, and soon thereafter, the onset of other symptoms, including dysphoria, anxiety, irritability, mood swings, autonomic hyperactivity, easy startle, night sweats, flashbacks, and panic attacks. In reaching her opinion, the DBQ examiner relied on pertinent medical records, including VA mental health records, and an evaluation and clinical interview of the Veteran. As such, her opinion appears to be both fully informed and reliable. Moreover, VA psychiatry and psychology treatment records since September 2008 demonstrate that the Veteran regularly discussed his combat-related experience and frequently reported symptoms such as combat-related nightmares, intrusive memories, and panic attacks pertaining to his service in Vietnam. Given the DBQ examiner's opinion, the Veteran's VA treatment records, and the fact that there are no medical opinions that appear to link the Veteran's PTSD to non-service related stressors, the Board affords the Veteran the benefit of the doubt and finds that the medical evidence establishes a link between the Veteran's current PTSD symptoms and his in-service stressor. Accordingly, there is an approximate balance of positive and negative evidence regarding whether the Veteran has a current diagnosis of PTSD and regarding whether the Veteran's PTSD was caused by his in-service stressor. As the positive and negative medical evidence of record is at least in relative equipoise, the benefit-of-the-doubt rule applies, and service connection for the Veteran's PTSD is warranted. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Entitlement to service connection for posttraumatic stress disorder is granted. ____________________________________________ S. HENEKS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs