Citation Nr: 1631304 Decision Date: 08/05/16 Archive Date: 08/12/16 DOCKET NO. 13-02 752 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for a psychiatric disability, to include post-traumatic stress disorder (PTSD), for the purpose of accrued benefits. REPRESENTATION Appellant represented by: Attorney Colin Kemmerly ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The Veteran served on active duty from October 1961 to December 1964 and from February 1965 to February 1982. He died in July 2013, and the appellant is his surviving spouse (substituting as the appellant under 38 U.S.C.A. § 1512A). This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision. In his January 2013 substantive appeal, the Veteran requested a hearing before the Board; in an April 2016 statement, the appellant withdrew the request for a hearing. FINDING OF FACT 1. The Veteran received a diagnosis of PTSD, based on a valid stressor event, during his lifetime, and the evidence of record is at least in equipoise as to whether PTSD was causally related to his military service. CONCLUSION OF LAW 1. The criteria for an award of service connection for PTSD, on an accrued basis, have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist Because the Board is granting service connection for PTSD, for accrued benefits purposes, 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 2002 & Supp. 2008)) and the implementing regulations. Legal Criteria Accrued benefits are "periodic monetary benefits authorized under law administered by [VA], to which a payee was entitled at his or her death under existing ratings for decisions or those based on evidence in the file at the date of death, and due and unpaid . . . ." 38 U.S.C.A. § 5121(a); 38 C.F.R. 3.1000(a). By statute, the appellant takes the veteran's claims as they stood on the date of his death. Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996). The law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Factual Background The Veteran served in the Republic of Vietnam from November 1969 to November 1970. His service treatment records are silent for any reports, findings, treatment or diagnosis of a psychiatric disability. At a February 1982 service retirement examination, psychiatric findings were normal on clinical evaluation; on a contemporaneous report of medical history, he denied frequent trouble sleeping, depression or excessive worry, or nervous trouble of any sort. At a July 2011 VA initial psychiatric evaluation, the Veteran reported having a memory of awakening in a cot on an Army base in the South of Vietnam, screaming; his screams were so loud that he awakened others. He felt that nothing changed that he observed, until he went for R and R to Taiwan. He reported there was an incident in which someone shot off fireworks and he awakened, desperately searching for a gun; he did not find the gun but he was anxious. He stated that his anxiety had lasted from then until now. He reported having repeated disturbing memories, thoughts or images, and a couple of flashbacks. His wife reported that she witnessed him awakening in the night but he was unable to remember awakening. He reported having emotional distress to unexpected fireworks and he sat with his back to the wall in restaurants; he was jittery and nervous on exposure to triggers. He reported efforts to avoid thoughts, feelings or conversations about the stressor events as well as efforts to avoid people, places or events that reminded him of the events. He reported loss of interest in things he used to enjoy; feeling isolated, distant or cut off from others; and feeling emotionally numb or unable to have loving feelings for anyone except his wife of 52 years. He reported sleep disturbance, anger outbursts or feeling irritable, hypervigilance, and being easily startled. Clinically significant distress or impairment of function was noted. Following a mental status examination, the diagnosis was PTSD. The treating psychiatrist opined that the Veteran was a classic prolonged PTSD veteran who had been avoidant and distant from others. Medication was prescribed and the Veteran was referred for psychotherapy. On September 2011 VA treatment, the Veteran was improved with the medication Paxil. The diagnoses included PTSD and parasomnia. On September 2011 VA examination, the Veteran stated that he was a heavy equipment mechanic in the Army, and he served in Vietnam from 1969 to 1970. He reported that he was in Pleiku, and his second assignment during his tour was with another unit. He served until February 1982; after service, he worked as an automotive instructor and then he ran two mobile home parks. He did not seek mental health treatment in the military; the first time he sought treatment was in July 2011, because his wife would wake him up sleepwalking, which bothered her. He was started on Paxil and was now sleeping well; he occasionally had dreams of things such as blood on his hands. His reported stressors included mortar attacks in general, and being shot at while he was on the back of a truck en route to Da Nang; the examiner opined that these stressors are adequate to support the diagnosis of PTSD and are related to the Veteran's fear of hostile military or terrorist activity. He also stated that he was on a C-130 with closed body bags, which the examiner opined was not an adequate stressor to support a diagnosis of PTSD and was not related to the Veteran's fear of hostile military or terrorist activity. He reported that he did not like to socialize or be in noisy crowded places, and he stated that these problems started after active duty. The examiner stated that the Veteran completed a trauma symptom inventory that was valid and within normal limits and opined that it did not support a diagnosis of PTSD. Following a mental status examination, the VA examiner opined that the Veteran's symptoms did not meet the full diagnostic criteria for PTSD under DSM-IV criteria and he did not have a mental disorder that conforms to DSM-IV criteria. No mental disorder was diagnosed. On December 2011 VA treatment, the Veteran was noted to have served in Vietnam during the Vietnam war and that he suffered from reexperiencing the trauma and horror of war, and avoidance of those same feelings. He had recently reviewed his Army service in Vietnam at the request of a VA representative, which he reported caused him to suffer a reexperiencing of his trauma in vivid detail. He reported recurrent anxiety and avoidant behavior. His wife reported that, since renewing the topic of his Army service, the Veteran had had no sleep and was dreaming a lot and he kept all the curtains closed. She reported that she had boxed up two albums of his pictures from Vietnam because she found that when he reminisced over the pictures, he had nightmares and yelled a lot at night. She reported that she and the Veteran were married with four children before his service in Vietnam; when he returned, he was "hard on the kids". Following a mental status examination, the diagnoses included PTSD, parasomnia, and sleepwalking disorder. The treating psychiatrist opined that this was a classic PTSD veteran who remained physiologically distressed, with somnambulism, night terrors and nightmares; he had avoidant behavior and he would re-experience the trauma of war, most particularly if cued by pictures connecting his feelings to his actual service in Vietnam. On February 2012 VA treatment, the treating psychiatrist opined that the Veteran's exposure to combat and his experiences in the Army may be considered universally to represent trauma and threat to life. On May 2012 VA treatment, the psychiatrist opined that the Veteran was a classic avoidant PTSD veteran with many experiences in combat in Vietnam. The Veteran died in July 2013. Analysis In this case, the criteria for service connection are met. The evidence indicates that the Veteran served in combat in Vietnam and he was diagnosed with PTSD in July 2011 by a VA treating psychiatrist who opined that the Veteran was a classic prolonged PTSD veteran who had been avoidant and distant from others. The same treating VA psychiatrist provided medical evidence establishing a link between the Veteran's military service and the psychiatric disability on appeal when the psychiatrist later opined (on December 2011 treatment) that this was a classic PTSD veteran who remained physiologically distressed, with somnambulism, night terrors and nightmares; he had avoidant behavior and he would re-experience the trauma of war, most particularly if cued by pictures connecting his feelings to his actual service in Vietnam. The treating VA psychiatrist further opined (on February 2012 treatment) that the Veteran's exposure to combat and his experiences in the Army may be considered universally to represent trauma and threat to life, and (on May 2012 treatment) that the Veteran was a classic avoidant PTSD veteran with many experiences in combat in Vietnam. The Board finds that the evidence is at least in equipoise with regard to whether the Veteran's PTSD was related to military service. Therefore, the Board finds that service connection should be granted for PTSD for accrued benefits purposes. ORDER Entitlement to accrued benefits for service connection for PTSD is granted. ____________________________________________ VICTORIA MOSHIASHWILI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs