Citation Nr: 1638137 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 10-29 246 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD) with nightmare disorder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to January 1971. Service in the Republic of Vietnam is indicated by the record. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In that decision, the RO denied service connection for PTSD. In November 2013, the Board remanded the Veteran's claim for further evidentiary development. The Veteran's claim has been adjudicated as service connection for an acquired psychiatric disorder, to include PTSD; however, the issue has been re-characterized to comport with the medical evidence of record as indicated below. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran has PTSD with nightmare disorder related to an in-service stressor. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD with nightmare disorder have been met. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). As the Board is granting the benefit sought in full for the claim of entitlement to service connection for PTSD with a nightmare disorder, further discussion of the VCAA is unnecessary. II. Service Connection Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). If a veteran engaged in combat and the claimed stressor is related to combat, the veteran's lay testimony alone generally is sufficient to establish the occurrence of the claimed in-service stressor, absent clear and convincing evidence to the contrary and provided that the claimed stressor is consistent with the circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(2). Here, the Veteran has been diagnosed with multiple psychiatric disorders, including PTSD with nightmare disorder, adjustment disorder with depressed mood, mood disorder not otherwise specified (NOS), and dysthymia. See, e.g., VA treatment record dated February 2009 and VA examination report dated December 2013. There has been conflicting evidence as to whether the Veteran has a valid PTSD diagnosis. While September 2009 and December 2013 VA examiners found that the Veteran does not meet the diagnostic criteria for PTSD, multiple VA mental health treatment providers, including a psychologist who interviewed the Veteran and documented his reported symptoms, diagnosed him with PTSD. This includes a November 2010 VA treatment note prepared by VA psychologist W.S., who specifically noted the Veteran's Vietnam service and provided an Axis I diagnosis of PTSD. Given the conflicting diagnoses based on examination by VA mental health professionals, the evidence is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has met the current disability requirement with regard to the claim for service connection for PTSD. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran attributes his acquired psychiatric disability to his military service in Vietnam. In particular, he asserts that during the course of his military occupational specialty (MOS) as a medic, his unit moved through an area with land mines and he witnessed fellow servicemen severely injured and killed by the land mines. Service records confirm that the Veteran was a medical assistant attached to a combat infantry unit in the Republic of Vietnam. Furthermore, an August 2009 response from the U.S. Joint Services Records Research Center (JSRRC) confirms that the Veteran's unit engaged in combat with the enemy on multiple occasions, resulting in significant numbers of wounded and casualties. Notably, the Veteran did not receive any medals indicative of combat. See VA Adjudication Procedures Manual, IV.ii.1.D.1.e (updated September 11, 2015) (listing Decorations that are evidence of combat participation). However, the absence of such is not dispositive of whether the Veteran engaged in combat. A finding that a veteran engaged in combat with the enemy under 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) requires that the Veteran participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality, and does not apply to veterans who served in a general "combat area" or "combat zone" but did not themselves engage in combat with the enemy. See VAOPGCPREC 12-99 (October 18, 1999). In this case, the evidence reflects that the Veteran was a medic in a unit that engaged in multiple battles in a combat zone, which is consistent with the Veteran's testimony regarding fellow soldiers being wounded and killed by land mines. The Board finds that, given his proximity to significant combat and his MOS as a medic, the Veteran engaged in combat with the enemy and his claimed stressor is related to that combat. Given that the claimed stressor is consistent with the circumstances of the Veteran's service and the absence of clear and convincing evidence to the contrary, the Veteran's lay testimony alone establishes the occurrence of the claimed in-service stressor. The diagnosis of PTSD based on the Veteran's combat stressor by a VA psychologist is entitled to significant probative weight. Moreover, although the December 2013 VA examiner found that the Veteran did not meet the diagnostic criteria for PTSD, the examiner found that the Veteran's stressor is adequate to support a diagnosis of PTSD, and is related to the Veteran's fear of hostile military or terrorist activity. Furthermore, the December 2013 VA examiner diagnosed the Veteran with a nightmare disorder and opined that the Veteran's nightmare disorder is at least as likely not caused by or result of his military service. The VA examiner reasoned that the Veteran "reported that at least 50% if the content of his nightmares involves events from Vietnam." There is no contrary opinion with regard to nightmare disorder. The Board notes that the September 2009 and December 2013 VA examiners diagnosed the Veteran with an adjustment disorder, NOS, with mood disorder. The VA examiners opined that the Veteran's adjustment disorder with depressed mood was not related the Veteran's military service. The VA examiners reasoned that the Veteran's adjustment disorders, NOS, with depressed mood is related to his current life stressors, such as employment and spouses difficulties. The evidence is thus at least evenly balanced as to whether the Veteran's PTSD is related to his in-service stressor and as to whether he has nightmare disorder related to service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD with nightmare disorder is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As indicated above, the Veteran has been diagnosed with other psychiatric disorders in addition to PTSD with nightmare disorder. Notably, the VA examiners and VA treatment providers did not differentiate between symptomatology associated with the Veteran's PTSD and the other psychiatric disorders. As the Veteran will therefore be compensated for all of his psychiatric symptoms, the Board will not separately adjudicate a claim for service connection for any other psychiatric disorder. Mittleider v. West, 11 Vet App. 181 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). ORDER Entitlement to service connection for PTSD with nightmare disorder is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs