Citation Nr: 1720442 Decision Date: 06/07/17 Archive Date: 06/21/17 DOCKET NO. 08-02 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD) and a mood disorder. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1975 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ) in May 2013. A transcript is of record. In December 2015, the Board remanded the claim on appeal to the Agency of Original Jurisdiction (AOJ) for an attempt at stressor verification. In substantial compliance with the Board's remand directives, the AOJ submitted accurate information to the United States Army Crime Records Center (USACRC) in March 2016, May 2016, and July 2016. Additionally, the AOJ submitted accurate information to the Defense Personnel Records Information Retrieval System (DPRIS) in July 2016. In October 2016, the AOJ notified the Veteran that all efforts to obtain stressor verification records had been exhausted and unsuccessful. USACRC and DPRIS responses are of record. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has reviewed the electronic records maintained in both Virtual VA and the Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence. FINDINGS OF FACT 1. The Veteran has been diagnosed with PTSD and major depressive disorder. 2. The Veteran's reported stressor, locating a decased service member with a severe head injury occurred in approximately November 1977, while serving in Germany. 3. The Veteran's current psychiatric symptoms include: sleep disturbance (wakes easily to extraneous noises and has nightmares about finding the deceased service member); tiredness during the daytime; depressed mood; anhedonia; diminished concentration; indecisiveness; and panic attacks (in crowds). 4. Although the claimed in-service stressor has not been verified via USACRC or DPRIS to date, the stressor account has remained overall consistent with longitudinal records of mental health treatment. 5. The Veteran's current psychiatric condition is causally and etiologically related to the claimed in-service stressor. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the criteria for service connection for a psychiatric disorder, to include PTSD and a mood disorder, have been met. See 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, Diagnostic Code (DC) 9411 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to provide claimants with notice and assistance in the development of their claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159. In light of the fully favorable decision herein, no further discussion of compliance with VA's duty to notify and assist is necessary. See Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). II. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110; 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. See 38 C.F.R. § 3.303(d). Establishing service connection generally requires: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). 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. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises and statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. See 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. See 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely based on the lack of contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. See 38 U.S.C.A. § 1154(a). Further, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. As with all claims, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. III. Factual Background and Analysis The Veteran generally contends that he is entitled to service connection for a psychiatric disorder, to include PTSD and a mood disorder. In this case, direct service connection for this issue is warranted. As such, all other theories of service connection are moot. See 38 U.S.C.A. § 7104. Service personnel records show that the Veteran was issued an Article 15 for verbally disrespecting a superior. The Veteran contends that this incident was related to his feeling that no one was doing anything about the deceased service member, discussed below. According to the April 2005 application for benefits, the Veteran wrote that his PTSD began in November 2001. The Veteran added that he had flashbacks, nightmares, and short-term memory loss. The Veteran further added that he could not stand to be in large crowds. Post-service treatment records indicate that the Veteran was first formally diagnosed with PTSD in May 2005. Records from the Social Security Administration (SSA), from which the Veteran receives disability benefits due to mental health conditions, indicate that the date of disability began in December 2005. In a February 2011 letter from the Veteran's wife, she described how he had told her about finding his friend dead in Germany. In November 2014, the Veteran was afforded a VA examination to assess the status of his psychiatric symptoms. The examiner diagnosed the Veteran with "PTSD with depressive features" per DSM-5 criteria. The examiner opined that the depressive symptoms appeared to be related to the PTSD symptoms and do not constitute a separate depressive diagnosis presently." The examiner noted symptoms including: sleep disturbance (wakes easily to extraneous noises and has nightmares about finding his friend dead); tiredness during the daytime; depressed mood; anhedonia; diminished concentration; indecisiveness; and panic attacks (in crowds). The examiner stated that the Veteran's symptoms appear to have a delayed onset, with nightmares beginning in the late 1990s and hypervigilance and feelings of depression beginning around 2000. Regarding stressors, the Veteran reported to the November 2014 examiner that, while in the military, one of his friends went missing and, after several days, the Veteran and several other soldiers organized a search party. The Veteran reported that he found his friend dead in a canal and that it looked like somebody had "bashed his head in." The Veteran stated that he never found out who was responsible for the death and recalled it happening around 1977. The examiner noted that the "stressor associated with PTSD with depressive features appears to be finding his friend dead in a canal while he was in the military." The examiner also noted that this alleged stressor could not be verified, but said that the "stressor account during exam today [was] consistent with his accounts in MH [mental health] records." The examiner further noted that the "Veteran's report of stressor appears to be credible" and that "he is consistent in his report of the in-service stressor in MH treatment records, personal statement, and during the exam today." Pursuant to the Board's December 2015 remand directives, multiple attempts were made to try to verify the Veteran's contentions. The AOJ contacted USACRC in March 2016 to obtain copies of any investigative reports relating to the incident in November 1977; however, no response was received. The request specifically stated the Veteran's account that he found a deceased service member (SPC Young of the 504th Transportation Company) in a canal in Germany in 1977. It also noted the Veteran's report that the deceased service member was reported AWOL and, when the Veteran and the search party found the service member, his head was cracked open. The AOJ specifically requested an attempt be made to verify the death of service member SPC Young. The AOJ contacted USACRC again in May 2016 to obtain copies of any investigative reports relating to the November 1977 incident; however, no response was received. A third attempt to obtain investigative report copies was made in July 2016; however, USACRC responded with "no record with info provided." A July 2016 Defense Personnel Records Information Retrieval System (DPRIS) response also indicated that "the historical and casualty information available to [DPRIS]" was researched and that DPRIS was "unable to locate information concerning the stressor incident." An October 2016 Final Attempt Letter notified the Veteran that all efforts to obtain records related to his claimed stressor had been exhausted and unsuccessful. In an April 2017 Informal Hearing Presentation, the Veteran's representative contended that the Veteran's stressor was related to finding a fellow soldier, who had been killed, in a ditch. The representative pointed to the Veteran's January 2006 diagnosis of major depression and the February 2006 diagnoses of PTSD and major depressive disorder. The representative also pointed to "one suspicious instance in the Veteran's STR of an accidental overdose," stating that it "is unclear whether there was any other psychological follow up provided," but noting that "[d]ischarge notes indicate that he was not suicidal at the time of release." Although the claimed in-service stressor has not been verified via USACRC or DPRIS to date, the Board finds that the Veteran's stressor account has remained overall consistent with longitudinal records of mental health treatment. The Board highlights the November 2014 examiner's opinion that the "Veteran's report of stressor appears to be credible" and supported a nexus between the Veteran's claimed in-service stressor and the Veteran's psychiatric symptoms ("stressor associated with PTSD with depressive features appears to be finding his friend dead in a canal while he was in the military"). As such, the Board finds that the evidence is at least in equipoise that he was exposed to the in-service stressor of finding his fellow service member deceased. There is no reason to doubt the credibility of the Veteran's testimony. As such, the Board acknowledges the Veteran's claimed in-service stressor on a facts-found basis and concludes that service connection for a psychiatric disorder, to include PTSD and a mood disorder, is warranted on a direct basis. ORDER Entitlement to service connection for a psychiatric disorder, to include PTSD and a mood disorder, is granted. ____________________________________________ L.M. BARNARD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs