Citation Nr: 1752580	
Decision Date: 11/16/17    Archive Date: 11/22/17

DOCKET NO.  14-02 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for post-traumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Kettler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1969 to May 1971.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

In May 2017, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  New evidence, with a waiver of RO consideration, was submitted at the hearing.

This appeal was processed using the Virtual VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should review this electronic record.


FINDING OF FACT

The Veteran has PTSD related to his active service.


CONCLUSION OF LAW

The criteria for establishing entitlement to service connection for PTSD have been met.  38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017).







REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

II. Legal Analysis

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service.  See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  To substantiate a claim of service connection, there must be evidence of (1) a current disability (for which service connection is sought); (2) incurrence or aggravation of a disease or injury in service; and (3) a causal connection between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004).

To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing PTSD in accordance with 38 C.F.R. § 4.125(a), which requires it be diagnosed in accordance with the DSM; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and, (3) medical evidence of a link between current symptomatology and the claimed in-service stressor.  38 C.F.R. §3.304(f).  

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C.A. §5107(b).


III. Merits of the Claim

The Veteran asserts that he has PTSD due to combat stressors experienced during his period of service in the Vietnam War.  Specifically, the Veteran has reported on multiple occasions witnessing friends killed from gunfire and several near death experiences due to artillery fire.  See May 2011 Statement in Support of Claim.

First, the Board finds that the Veteran has a current psychiatric disability of PTSD.  While the March 2013 VA examiner noted that the Veteran does not meet all the criteria for a PTSD diagnosis, a May 2017 private treatment record shows that the Veteran has an Axis I diagnosis of PTSD.  

The Veteran's military personnel records confirm his presence in the Republic of Vietnam during active duty and that he was with the 2nd Battalion, 50th Infantry 2nd Armed Division.  His DD-214 reflects his military occupational specialty (MOS) was combat engineer.  Consequently, the Board finds that the Veteran is entitled to the combat presumption, and that his reported combat-related stressors, to include experiencing fear while taking artillery fire, are deemed credible without requiring independent verification.  If the evidence establishes that a 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.  38 U.S.C.A. § 1154(b) (2012); 38 C.F.R. § 3.304(f)(2) (2017).

Finally, the Board finds the evidence shows a nexus between the Veteran's current diagnosis of the PTSD related to his in-service combat stressors.

The Veteran's treating counselor diagnosed Axis I PTSD due to Vietnam combat trauma.  See September 2010 Tampa Bay VAMC treatment note.  The Veteran reported intrusive thoughts, distressing dreams, and other symptoms associated with the stressor event.  Id.

In October 2012, the Veteran's private psychiatrist, Dr. G.A. provided a medical opinion.  Dr. G.A. considered the Veteran's military service and reported stressors, and determined that the Veteran has Axis I PTSD.  In particular, the examiner noted nightmares, forced memories, survivors' guilt, hypervigilance, anger episodes, irritability, and suicidal ideations.  Notably, the private examiner opined that the Veteran has been suffering from these chronic symptoms since leaving service.

The Board notes that, in a March 2013 VA examination for PTSD, a VA examiner found the Veteran did not have a diagnosis of PTSD that conformed to the DSM.  The examiner stated she was unable to discern legitimate symptoms from overendorsed symptoms and, therefore, was unable to provide a diagnostic impression.  However, the Veteran's file, which the examiner reviewed, has numerous reports of diagnoses and treatment for PTSD.  Given medical treatment records from the VA and others documenting treatment for PTSD, the examiner's statement cannot be considered a probative indication of the non-existence of PTSD.

Upon review of the foregoing, the evidence is at least in equipoise.  Thus, the benefit-of-the-doubt doctrine is for application, and resolving all reasonable doubt in favor of the Veteran, entitlement to service connection for PTSD is granted.  38 U.S.C. § 51-7(b); 38 C.F.R. 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for PTSD is granted.  




____________________________________________
Cynthia M. Bruce
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs