Citation Nr: 1751622 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 14-00 733 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), to include as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Allen Gumpenberger, Agent WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD A. Diaz-Ferguson, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1979 to June 1982 and from October 1982 to March 1984. This matter comes before the Board of Veterans' Appeals (Board) from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In October 2016, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. The Board notes that the scope of a service connection claim includes any disability that may reasonably be encompassed by the Veteran's description of the claim, reported symptoms and other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has broadly characterized the Veteran's claim as one for service connection for an acquired psychiatric disability. Briefly, the Board notes the July 2010 rating decision that denied service connection for PTSD also denied service connection for dental damage. That same month, the Veteran submitted a notice of disagreement and the RO continued both denials in a November 2010 rating decision. Before the RO issued a statement of the case (SOC), the Veteran withdrew his appeal for service connection for dental damage in an April 2013 statement. The RO issued its SOC in November 2013, in which it continued to deny the PTSD claim. The Veteran substantially appealed the issue that same month, and the claim was certified to the Board in June 2016. The record before the Board consists of electronic records in Virtual VA and the Veterans Benefits Management System (VBMS). FINDINGS OF FACT Resolving all doubt in the Veteran's favor, his PTSD and major depressive disorder with psychotic episodes are etiologically related to his active duty service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, claimed as PTSD and major depression with psychotic episodes are met. 38 U.S.C.A. §§ 1131, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As explained below, the Board has determined that the evidence currently of record is sufficient to substantiate the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2017) before the Board decides the claim. Legal Criteria Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Establishing service connection for PTSD requires: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). When the claimed stressor is not related to combat, generally, the Veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates the Veteran's testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Corroboration of every detail of a claimed stressor, including an appellant's personal involvement, is not required; rather, a veteran needs only to submit independent evidence of a stressful event that is sufficient to imply his or her personal exposure. Pentecost v. Principi, 16 Vet. App. 124 (2002), citing Suozzi v. Brown, 10 Vet. App. 307 (1997). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis The Veteran seeks service connection for an acquired psychiatric disorder, which he contends originated in service. At the outset, the Board notes the Veteran has been diagnosed with various psychiatric disorders, including PTSD, and major depressive disorder (MDD) with psychotic episodes. Specifically, the October 2010 VA examination indicates the PTSD diagnosis was given in accordance with the required standards. As such, the remaining issues to resolve are whether the Veteran has stressors corroborated by credible evidence, and whether a medical nexus exists between the stressors and the Veteran's military service. With regard to in-service stressors, in an August 2009 statement, the Veteran first reported witnessing the death of a friend in basic training when the friend fell over while they were exercising in May 1979. The Veteran reported his friend died in an ambulance after two ambulances broke down at the site. Second, the Veteran reported that a week after his friend died, another service member jumped off the second floor balcony of the barracks. The Veteran also reported being afraid for his life on his first day at Ft. Benning, Georgia because the military police (MP) unit was on alert for a KKK march in May 1980. The Veteran stated this constantly reminded him he was in the Deep South where the KKK had an active participation that could become part of his job as an MP Officer, which reminded him of the suffering his great grandparents experienced during slavery. The Veteran then reported he and his partner were assaulted at a night club while stationed in Korea around November 1981. While stationed at Ft. Bliss, El Paso, in 1982, the Veteran reported responding to a robbery in progress at the NCO club where his partner was severely wounded when the perpetrators opened fire and struck the partner in the arm, severing the limb. The last stressor the Veteran reported occurred while he was stationed in Germany in November 1983, where the Veteran went absent without leave (AWOL) due to the effects of the trauma he had experienced. In a December 2009 statement, the Veteran also reported he attempted suicide by cutting his wrists whilst stationed at Ft. Benning, in the summer of 1980. The Veteran reported he was taken to the Base hospital emergency room, where he received eight stitches on each wrist. The evidence of record contains corroborating evidence for two of the stressors the Veteran reported. In November 2010, a military records specialist issued a formal finding of the unavailability of service treatment records (STRs) and personnel records for the Veteran's first period of service. The finding detailed the procedures and efforts made to obtain the STRs and personnel records, and concluded that further attempts to obtain said records would be futile. Neither the Veteran nor his representative has submitted other corroborating evidence for the stressors at basic training, Ft. Benning, and Korea. Given that no corroborating evidence has been submitted for these stressors, the Board will not consider them in its analysis. See 38 C.F.R. § 3.304 (f). However, in October 2016, VA received a statement from A. J., who stated he was the Veteran's platoon leader at Ft. Bliss when the shooting took place. In his statement, Mr. J. reported the platoon was handling the law enforcement duties on post the night of the shooting. The platoon leader remembered the Veteran was one of the responders to the incident. He reported visiting the wounded serviceman in the hospital and described the severity of his injury. As the platoon leader is competent to report events that occurred in service, as well as his own observations, the Board finds his statements credible and probative. The probative value of this evidence is bolstered by court documents received in June 2012. Those documents belong to a court case in the United States Court of Appeals for the fifth circuit against the man who shot the shotgun during the robbery. The documents also describe the facts and circumstances of the incident nearly as the Veteran reported them. Given the official nature of the documents, the Board finds them credible and probative evidence. As the Veteran has submitted credible and probative corroborating evidence for his stressor, the Board finds the Veteran has met the requirements for establishing a PTSD stressor, as required by 38 C.F.R. § 3.304 (f). Thus, the Board now turns to the third requirement of a PTSD service connection claim. In October 2010, the Veteran underwent a VA psychiatric examination. During the evaluation, the Veteran reported the above-noted stressors, including the corroborated armed robbery that resulted in the Veteran's partner's arm being shot off. The examiner noted the various medications the Veteran was using for his condition. The examiner also noted the Veteran experienced persistent recurrent recollections, dreams, and physiological reactivity to cues of the traumatic events. Additionally, the Veteran exhibited avoidance of stimuli, avoidance of social activities, diminished interest in activities, feelings of detachment, increased arousal, irritability, exaggerated startle response, and difficulty concentrating as effects of the traumatic events. During the examination, the examiner found the Veteran to be a credible historian, and noted he had poor eye contact, his affect and mood showed a disturbance of motivation and mood, mood swings, anxiety, and irritability. Additionally, the examiner noted depression and anxiety were constant, and the Veteran showed signs of suspiciousness, impaired attention, panic attacks, and occasional delusions. The examiner provided and confirmed a diagnosis of PTSD, major depressive disorder and occasional psychotic episodes. In his diagnosis, the examiner attributed the conditions to the Veteran's reported stressors, which included the incident at Ft. Bliss. Essentially, the examiner provided a medical nexus between the Veteran's corroborated stressor and his PTSD diagnosis. As such, the Board finds the Veteran has met the third requirement to establish service connection for PTSD. Additionally, the Veteran underwent a private psychiatric evaluation, by a physician familiar with the Veteran's condition since January 2013, in October 2016. The physician confirmed the PTSD and major depressive disorder diagnoses. He attributed the following symptoms to PTSD: anxiety, hypervigilance, intrusive thoughts of past traumas, and nightmares. To depression, the physician attributed the symptoms of decreased interest, decreased motivation, and isolation. In examining the Veteran, the physician noted the history of depression with psychotic episodes as well as the various stressors the Veteran reported occurred in service. In the examination report, the physician linked the Veteran's stressors, including the stressor of his partner's arm being shot off, to his current psychiatric conditions. Given the foregoing, and resolving all doubt in the Veteran's favor, the Board finds service connection for PTSD and major depressive disorder with psychotic episodes is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD and major depressive disorder with psychotic episodes is granted. ____________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs