Citation Nr: 1620726 Decision Date: 05/23/16 Archive Date: 06/02/16 DOCKET NO. 12-25 436 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include post-traumatic stress disorder (PTSD) and depression. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Anderson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1987 to March 1992. The Veteran received the Combat Action Ribbon, among other decorations, for this service. This claim comes to the Board of Veterans' Appeals (Board) from a June 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The Veteran testified at a hearing before the Board in April 2016. A VLJ who conducts a hearing must fully explain the issues and suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, during the hearing, the Veteran was assisted by a representative, and both the representative and the VLJ asked relevant questions concerning the Veteran's symptoms and the resulting impairment, as well as the effect of his disability on his daily life and his occupation. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2). FINDINGS OF FACT 1. The Veteran engaged in combat during his active military service. 2. Resolving all doubt in favor of the Veteran, the Veteran has a PTSD diagnosis that meets the VA requirements and is causally or etiologically related to service. CONCLUSION OF LAW The criteria for the grant of service connection for an acquired psychiatric disorder, to include PTSD and depression have been met. 38 U.S.C.A. § 1101, 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred or aggravated in service. 38 C.F.R. § 3.303(d). In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Establishing service connection for PTSD requires specific findings. These are: (1) a current medical diagnosis of PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f). The diagnosis of PTSD must comply with the criteria set forth in the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, of the American Psychiatric Association (DSM-V). Id.; see also 38 C.F.R. § 4.125(a) The newer DSM-V has now been officially released. An interim final rule was issued on August 4, 2014, that replaced the DSM-IV with the DSM-V. 79 Fed. Reg. 45093 (Aug. 4, 2014). However, the provisions of the interim final rule apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after August 4, 2014. Jurisdiction over the present appeal was conferred to the Board in July 2013. Thus, the newer DSM-V does not apply to the present case. The evidence necessary to establish the occurrence of a stressor during service to support a diagnosis of PTSD will vary depending upon the circumstances of the case. 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 may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f). See 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) (pertaining to combat veterans); Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). The ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). In September 2011, the Veteran reported to the Vet Center in San Diego in order to receive treatment for his depression and PTSD symptoms. He was evaluated by Dr. K.S-S. a Ph.D and team leader at the Vet Center. It was noted that the Veteran was exposed to friendly fire incidents while in Kuwait, witnessing a fellow service member being shot in the back. He also knew of another service member that was killed by a grenade. During his entire time in the Persian Gulf, the Veteran reported extreme fear for his life. At the end of the intake session, it was determined that the Veteran endorsed symptoms of PTSD and exhibits a consistent depressed mood. His affect improves as he experiences trust with others. He tends to be quiet, giving off the appearance of shallow understanding of the situation and himself. When asked directly he exhibits a comprehensive understanding of the situation and personal impact of events and can be quite candid, though he does not spontaneously disclose information. In December 2011, the Veteran was afforded a VA examination to determine if he had a diagnosis of PTSD that met VA requirements, entitling him to service connection. At this time, the examiner determined that he did not meet the diagnostic criteria for PTSD under the DSM IV. During this examination the Veteran was diagnosed with depression, NOS. The examiner noted that the Veteran did have some symptoms of depression and had a history of depressive episodes. However, his symptoms did not meet the criteria for major depressive disorder. The examiner commented that the Veteran had a history of thinking about suicide, without a plan or intent, since 1990, when he thought of jumping off of the barracks due to a romantic breakup. The Veteran reported to the examiner feeling "blue" several days per week, sporadic lack of interest in hobbies/activities, periods of mild anhedonia, and being bothered by things that happened in the military. This examiner did note that he was diagnosed with PTSD and depression at the Vet Center, but did not discuss why two different assessments and diagnoses were reached. During this examination the Veteran relayed two specific incidents during his time in Persian Gulf, and the examiner concluded that his experience seeing another marine shot during a training accident in Kuwait that did meet the criterion to support a diagnosis of PTSD. However, he was not diagnosed with PTSD because the examiner felt that he did not persistently re-experience the traumatic event. In June 2012, the Veteran underwent a VA mental health intake summary. He reported that he was a Veteran of the Persian Gulf War and felt as though he had been battling PTSD and depression since separating from service. The Veteran stated that he was in the Persian Gulf from December 1990 to August 1991 and during this time he witnessed one of his service members being killed and another service member being killed by a grenade. He reported that he was constantly on guard, and he still feels hypervigilant. He also reported having difficulty sleeping, nightmares, feels of avoidance and generalized numbness. At the end of the intake session the Veteran was diagnosed with PTSD in accordance with the DSM-IV and associated depression, anhedonia, disrupted sleep, nightmares and marital separation. The Veteran underwent another VA examination in June 2012. At this time his depressive disorder diagnosis was continued. The Veteran was not diagnosed with PTSD because he did not meet PTSD criteria of avoidance or intrusive thoughts related to service. He reported some suspiciousness, but it appeared to the examiner that it was more of a general paranoia. The examiner also noted that his depression was not related to service or related to a notation in service on his August 1991 Report of Medical History noting anger issues (nervousness associated with anger issues-appropriate). The examiner explained that this appeared to be a transient reaction to a situation. The Board has reviewed the evidence of record, and specifically focused on the conflicting medical evidence on whether or not the Veteran has a diagnosis of PTSD that is related to his active medical service. It is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id.; see also Colvin v. Derwinski, 1 Vet. App 171 (1991). Even though the VA examiner twice concluded that the Veteran did meet all the criteria for a PTSD diagnosis, the Board finds that service connection is warranted. The Veteran was diagnosed with PTSD by the VA during a thorough and detailed examination that reviewed all of the pertinent DSM-IV criteria and noted that he met the DSM-IV criteria for PTSD. Further, the Veteran has an additional diagnosis of PTSD from San Diego Vet Center. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). As such the Board finds that the evidence of records is in equipoise as to whether the Veteran has a diagnosis of PTSD in accordance to VA regulations. As such the first element of service connection has been met. The Board finds that the Veteran's DD-214 supports his contention that he saw combat while in service in Southwest Asia. The Veteran's military occupational specialty during service was as a rifleman. He is in receipt of the Good Conduct Medal, Sea Service Deployment Ribbon, Kuwait Liberation Medal, National Defense Service Medal, Southwest Asia Service Medal with 3 stars, Navy Unit Commendation and Combat Action Ribbon. As such, the Veteran is entitled to the combat exemption and his lay testimony alone establishes the occurrence of the claimed in-service stressors; therefore, the second element of service connection is met. The remaining element is a link, established by medical evidence, between his current symptomatology and the claimed in-service stressors. Cohen v. Brown, 10 Vet. App. 128 (1997). In this regard, the Veteran underwent a VA mental health evaluation in July 2012 that indicated that the Veteran has PTSD as a result of his combat experiences. Thus resolving all reasonable doubt in favor of the Veteran, the Board finds that he the Veteran has been diagnosed with PTSD that has been medically related to his in service combat experience. Therefore, service connection for an acquired psychiatric disorder is granted. Duties to Notify and Assist Since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out in the Veterans Claims Assistance Act (VCAA) of 2000 (codified at 38 U.S.C.A. §§ 5100 , 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992). ORDER Service connection for an acquired psychiatric disorder, to include PTSD and depression is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs