Citation Nr: 1752978 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 14-08 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to service connection for an acquired psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Army from October 1966 to October 1968. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas which denied the Veteran's claim for service connection for an anxiety disorder, depression, and PTSD. In the March 2014 VA From 9, the Veteran requested a Board videoconference hearing. However, in April 2014 the Veteran withdrew his request for a hearing. The Veteran has not requested a new hearing; therefore, the Board will proceed with the decision on the claim. In September 2015, the Board, after recharacterizing the claim as one for service connection for an acquired psychiatric disability, remanded the claim for further development. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran has PTSD that is related to his military service. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection PTSD are met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Board notes that VA has certain duties to notify and assist the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). Given the favorable actions taken below concerning the claim for entitlement to service connection for PTSD, the Board will not discuss further whether those duties have been accomplished. II. Legal Principles and Analysis Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection also may be granted for a disability shown after service, when all of the evidence, including that pertinent to service, shows that it was traceable to a disease or injury incurred or aggravated in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event. Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). There are particular requirements for establishing service connection for PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally. Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010). Service connection for PTSD specifically requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-IV; 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), 4.125(a). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. Examples of such an event or circumstance are incoming artillery, rocket, or mortar fire. Service treatment records do not contain a diagnosis, treatment, or complaint of a psychiatric disability. In a September 2010 statement, the Veteran reported that he could no longer work, felt anxious around people, felt disconnected from his family, had difficulties sleeping, and was constantly reliving things that he witnessed while he was in service. Post-service medical treatment records reflect that the Veteran was diagnosed with PTSD, major depressive disorder (MDD), and insomnia in 2010. In an October 2011 letter, the Veteran's private physician, Dr. R.P., submitted a letter where she reported that she has treated the Veteran for anxiety and depression over the past year. She further reported that the Veteran had severe post-traumatic symptoms including depression, social isolation, insomnia, and nightmares. She concluded that the Veteran suffered from PTSD as a result of his service in Vietnam and would benefit from more VA service to address his problem. In an April 2011 VA examination report, the Veteran reported that his military occupational specialty (MOS) was primarily involved in transporting and pumping gas into helicopters. He reported that he would help bring the helicopter for landing and then others would unload the wounded soldiers and put them in ambulances for transport to the base hospital. He remembered seeing blood and wounded soldiers not being able to walk. He reported that he never saw direct enemy fire, but his base was attacked the first night that he was there. He reported that this frightened him, and that he woke up a sergeant nearby who calmed him down and let him know that the attack was not very close. He reported that his base was attacked four to five times when he was there but that he was not aware of anyone who was wounded or killed in the attacks, except for one time when he heard that a mess hall was hit. He reported that the worst part of his experience was seeing incoming wounded, which he witnessed bout three times. He further reported that his memories of seeing the wounded unloaded still bother him but that he does not think about it very often. He described his mood as "down" and stated that he feels down about five days in a typical week. The Veteran was diagnosed with dysthymic disorder, late onset. The examiner concluded that the Veteran had several symptoms that are seen in PTSD, but that he did not meet the full diagnostic criteria for this condition. He reported that he had some mild depression that was being treated, but his depression did not start in the military. The Veteran underwent an additional VA examination in February 2016, where the examiner found that the Veteran did not have a current mental disorder diagnosis. The examiner noted that the Veteran reported that he did not typically think about military experiences, indicating that he tried not to think about it. The Veteran additionally reported that he avoided military related movies. The Veteran reported that he did not have a problem getting along with others, denied problems with anger, had the ability to trust others, stated that he has not had bad dreams in about nine months, denied hypervigilance, and denied being easily startled. The examiner for the Veteran's stressors adequate to support a diagnosis of PTSD; however, found a diagnosis of PTSD was not substantiated. The examiner noted that the Veteran had some symptoms of PTSD, however, not to a degree that it would substantiate a disorder. He explained that the Veteran did not have the needed criteria of negative cognition/thinking or marked increase in arousal. He reported that when directly queried about these symptoms, the Veteran denied having problems in those areas. He reported that the Veteran's report of current functioning suggests that his depression was being controlled with medication. He concluded that given the onset of symptoms and VA documentation, it is less likely than not that his depression is related to his military experiences. Upon review of the evidence of record, the Board finds that service connection for PTSD is warranted. Initially, the Board notes that the Veteran was diagnosed with PTSD in 2010 by Dr. R.P. In contrast, the April 2011 and February 2016 VA examiners stated that the Veteran did not meet the criteria for a diagnosis of PTSD at the time of the VA examinations. However, the fact that the Veteran may not have met the criteria for a diagnosis in 2011 and 2016 is not a sufficient basis upon which to find that the Veteran does not meet the current disability requirement. McClain v. Nicholson, 21 Vet. App. 319 (2007) (a claim for service connection may be granted if a diagnosis of a chronic disability was made during the pendency of the appeal, even if the most recent medical evidence suggests that the disability resolved). The Veteran was diagnosed with PTSD in 2011 and had filed for a claim for service connection for a psychiatric disability in 2010. With regard to the October 2011 diagnosis by Dr. R.P., "[m]edical professionals are presumed competent to do their job." Schertz v. Shinseki, 26 Vet. App. 362, 369 (2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011) (applying presumption of regularity to medical examiners' competence). Moreover, health professionals "are presumed to know the DSM-IV requirements applicable to their practice and to have taken them into account in providing a PTSD diagnosis." Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997). Thus, the Board finds that the Veteran has met the current disability requirement in regard to PTSD. Regarding a stressor, the Veteran reported experiencing attacks on his base, hearing enemy fire during his service in Vietnam, and witnessing injured bodies. The February 2016 VA examiner found that the Veteran's stressors were related to the Veteran's fear of hostile military or terrorist activity, and found his stressors adequate to support a diagnosis of PTSD. Moreover, those types of stressors are consistent with the Veteran's service in the Republic of Vietnam. See 38 U.S.C.A. § 1154(a). Thus, the Veteran has met the credible supporting evidence of the claimed in-service stressor element. In regard to a link established by medical evidence between current symptoms and an in-service stressor, Dr. R.P. found that the Veteran's PTSD was related to his service in Vietnam. She noted that the Veteran had nightmares about Vietnam, was withdrawn socially from friends and family, and was isolated and very depressed. Although her opinion and rationale was not extensive, reading her opinion as a whole and in context of the evidence of record, as well as the consistency of the Veteran's statements, entitles her positive nexus opinion some probative weight. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). The February 2016 VA examiner similarly found that there was a link between the Veteran's symptoms and the in-service stressor. The Board notes that the Veteran has been diagnosed with dysthymia and MDD throughout the period of appeal. The Board will not address whether these diagnoses are related to service because there is no evidence in this case differentiating between the effects of PTSD and the other psychiatric disorders, and when VA cannot differentiate between the effects of a service-connected and nonservice-connected disorder, it must attribute the effects to the service-connected disability. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (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). See also Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009) (considering the possibility that bipolar disorder and PTSD did not constitute the same disability, but rejecting this argument based on the facts of that case). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran has PTSD due to in-service stressors that were related to his fear of hostile military activity. 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 is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs