Citation Nr: 1639608 Decision Date: 09/30/16 Archive Date: 10/13/16 DOCKET NO. 09-48 159 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety, and depression. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD E. Blowers, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1986 to December 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the RO in St. Petersburg, Florida. This case was previously before the Board in August 2014, where the Board, in pertinent part, denied service connection for an acquired psychiatric disorder. The Veteran appealed the denial of service connection for an acquired psychiatric disorder to the United States Court of Appeals for Veterans Claims (Court). In an Order dated in March 2016, the Court granted a Joint Motion for Partial Remand (JMR), which remanded the issue on appeal back to the Board for development consistent with the JMR. Specifically, the parties agreed that the Board erred in relying on an inadequate VA PTSD examination. While cognizant of its responsibilities under Forcier v. Nicholson, 19 Vet. App. 414 (2006), and Stegall v. West, 11 Vet. App. 268 (1998), as the Board grants service connection PTSD, which is a total grant of benefits as to the issue on appeal, the Board need not address Forcier or Stegall at this time. The Board notes that in its August 2014 decision, the Board reopened and remanded the issues of service connection for right and left knee disabilities. Subsequently, in a March 2016 Remand, the Board again remanded the knee issues for additional development. While it appears the requested development has been completed, the Board notes that the knee issues have not been recertified to the Board and the Veteran's representative has not had an opportunity to review and submit an Informal Hearing Presentation (IHP) concerning the newly developed evidence. As such, the Board will not accept jurisdiction over the knee issues at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. The instant matter is a Veterans Benefits Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran has a current diagnosis of PTSD. 2. During service the Veteran witnessed the death of approximately 20 fellow service members when a ferry capsized during deployment. 3. The PTSD stressor is adequate to support a diagnosis of PTSD, and the PTSD symptoms are related to the claimed stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.326, 4.125 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2015). As the instant decision grants service connection for PTSD, which is a complete grant of the issue on appeal, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for PTSD Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1154(a) (West 2014); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering a decision on appeal the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert, 1 Vet. App. at 57. Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. Prejean v. West, 13 Vet. App. 444, 448-49 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The United States Court of Appeals for Veterans Claims (Court) has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). 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. If the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service, 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. 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. If a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, 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 the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. "Fear of hostile military or terrorist activity" means that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. 38 C.F.R. § 3.304(f). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. In this case, the Veteran has advanced that PTSD developed as a result of witnessing the death of approximately 20 fellow service members when a ferry capsized during deployment. Initially, the Board finds that the Veteran is currently diagnosed with PTSD. The report from a September 2008 private psychological evaluation reflects that the Veteran was diagnosed with PTSD. Subsequent private evaluations also reflect a diagnosis of PTSD. The Board notes that the report from a January 2009 VA PTSD examination reflects that the VA examiner found that the Veteran did not meet the criteria for a PTSD diagnosis, as the Veteran did not have sufficient symptoms of numbing and avoidance. In the March 2016 JMR, the parties agreed that the opinion was inadequate as the VA examiner failed to provide a medical rationale for this finding. As the Board finds that the private medical evaluations are sufficient to establish a current diagnosis of PTSD, the Board need not remand the instant matter to obtain a new VA PTSD examination and opinion. The Board next finds that the evidence of record is sufficient to corroborate the Veteran's in-service stressor of witnessing the death of approximately 20 fellow service members when a ferry capsized during deployment. This tragic incident was reported in a December 1990 New York Times news report, and service personnel records reflect that the Veteran was stationed aboard the aircraft carrier to which the ferry was headed. Further, the stressor has previously been recognized by both the AOJ in the March 2009 rating decision and the Board in its August 2014 decision. Finally, the Board finds that the evidence is at least in relative equipoise on the questions of whether the Veteran's PTSD stressor is adequate to support a diagnosis of PTSD and whether the PTSD symptoms are related to the recognized stressor. Service treatment records do not reflect any complaint or treatment for an acquired psychiatric disorder, to include PTSD, during service. As noted above, the Veteran underwent a private psychological evaluation in September 2008. The evaluation report reflects that findings were based upon a clinical interview, personality assessment, and record review, which included the DD Form 214. The private psychologist assessed that that the consistency of the information provided supported a finding that the Veteran gave a reliable account of the stressor and resulting symptoms. Review of the Veteran's pre-service history revealed no prior mental health problems and/or potential stressors. While stationed aboard the U.S.S. Saratoga, approximately 20 service members, most being known personally by the Veteran, were killed when a ferry returning from shore to the aircraft carrier capsized after being hit by a huge wave. The Veteran advanced hearing screams, seeing the bodies brought aboard the ship, and noticing shark bites on some of the bodies. Further, the Veteran was haunted by the thought that he could have been one of those bodies had he also chosen to go ashore. In evaluating whether the Veteran met the criteria for PTSD, the private psychologist in September 2008 noted that the Veteran reported recurrent intrusive thoughts about the service members who drowned, and reported cognitive and physiological responses to news reports concerning similar accidents. Per the Veteran, PTSD symptoms first manifested after the ferry accident and would worsen during periods of stress, and depressive symptoms first manifested a few years prior to the September 2008 evaluation. Psychological testing in September 2008 revealed an individual profile similar to that of an individual exposed to a past disturbing traumatic event. At the conclusion of the examination, the resulting diagnosis was PTSD. The private psychologist noted that the Veteran had a pattern of social isolation and problems with employment authority figures that began after separation from service. While the private psychologist did not explicitly opine that the ferry accident stressor was adequate to support a diagnosis of PTSD, and did not explicitly write that the PTSD symptoms were related to the recognized stressor, a reasonable reading of the psychiatric evaluation report necessarily implies such opinions because there were no other potential pre- or post-service stressors identified or discussed in the evaluation report. Again, as discussed above, the Veteran received a VA PTSD examination in January 2009. While the VA examiner inadequately opined that the Veteran did not have PTSD because of insufficient symptoms, the weight of the evidence otherwise establishes a diagnosis of PTSD. A reasonable reading of the January 2009 VA examination report is that it was the VA examiner's opinion that, had such numbing and avoidance symptoms been present, the VA examiner would have found the stressor sufficient to support a diagnosis of PTSD. As the opinion was conditioned on the occurrence of symptoms that this VA examiner did not find, but which the weight of the evidence of record otherwise shows, the primary rationale in support of the January 2009 VA examiner's negative nexus opinion is without adequate factual support. VA received a new private psychological evaluation report in April 2009. As this was mostly an update of the September 2008 evaluation, the findings were primarily the same; however, in the summary and recommendations section of the report the private psychologist advanced that the Veteran's "presentation is consistent with that of other veterans who have been diagnosed with PTSD. Symptoms are service-connected." Reasonably read, the private psychologist was advancing an opinion that the PTSD symptoms were related to the recognized in-service ferry accident stressor. In August 2014, VA received a "Report of Consultation and Examination" from a private chiropractor who opined that the Veteran's PTSD was caused by the ferry accident stressor. Without commenting on the chiropractor's credentials and ability to render such an opinion, the Board notes that this opinion is consistent with, even if less probative than, the findings of the private psychologist in the September 2008 and April 2009 private psychological evaluations. The evidence shows that the Veteran has a current diagnosis of PTSD, an in-service stressor sufficient to support a diagnosis of PTSD, and the evidence of record is at least in equipoise on the question of whether the Veteran's PTSD symptoms are related to the in-service stressor. Resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. VA treatment records indicate that the Veteran may have other acquired psychiatric disorders, including depression and anxiety. Where a veteran is diagnosed with multiple acquired psychiatric disorders, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam). In this case, the Board is unable to differentiate the symptomatology of the PTSD from the symptomatology of the depression, anxiety, or any other acquired psychiatric disorder. As such, the Board has attributed all identified mental health disability symptomatology to the now service-connected PTSD, and the RO should consider all of the Veteran's mental health symptomatology when assigning an initial disability rating under 38 C.F.R. § 4.130 (2015). As all psychiatric symptoms and social and occupation impairment due to psychiatric symptoms will be rated as part of the service-connected PTSD, the Board need not consider whether service connection is also warranted for depression, anxiety, or any other acquired psychiatric disorder. ORDER Service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs