Citation Nr: 1753917 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 09-32 467A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant (Veteran) represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). The Veteran served on active duty from September 1960 to September 1962. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In the decision, the RO confirmed and continued its previous denial of service connection for PTSD. In May 2015, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge (VLJ)(a transcript of the hearing is associated with the electronic claims file). In September 2015, the Board granted the claim to reopen service connection and remanded the reopened claim for additional development. The claim was again remanded for additional development in May 2016. The case is now before the Board for appellate review. The record in this matter consists of electronic claims files and has been reviewed. New and relevant evidence has not been added to the record since the March 2017 Supplemental Statement of the Case (SSOC). FINDING OF FACT The evidence is in a state of relative equipoise regarding whether the Veteran has PTSD related to active service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Since January 2011, the Veteran has been service connected for acquired psychiatric disability. Since then, he has been rated as 50 percent disabled for dementia with neurocognitive disorder, depression, anxiety and pain syndrome. The Veteran further claims entitlement to service connection for PTSD. Since September 1998, he has asserted that he incurred PTSD as the result of service in the Republic of Vietnam in the early 1960s. The record documents that the Veteran served in the U.S. Navy on a ship (a minesweeper) near Da Nang, along the coast of Vietnam. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2017). 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 in-service stressor occurred. 38 C.F.R. § 3.304(f). A veteran's testimony, by itself, can establish the occurrence of an in-service stressor event if the requirements of 38 C.F.R. § 3.304(f)(3) are met. This provision reduces the evidentiary burden of establishing a stressor when it is related to a fear of hostile military or terrorist activity. Further, 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. 38 C.F.R. § 3.304(f)(3) (2017). For purposes of 38 C.F.R. § 3.304(f)(3) "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. Id. 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 will be granted to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). For the following reasons, a service connection finding is warranted for PTSD. First, the evidence is in relative equipoise regarding whether the Veteran has had PTSD during the appeal period (i.e., since April 2004). Certain evidence indicates that the Veteran does not have PTSD. In VA compensation examination reports dated in October 2015, March 2016, and December 2016, which were provided pursuant to the Board's September 2015 and May 2016 remands, it is indicated that the Veteran does not have PTSD. However, the Veteran's treating VA psychologist and psychiatrist, both of whom began treating the Veteran in 2007, have consistently diagnosed the Veteran with PTSD. Indeed, the PTSD diagnosis is noted in VA treatment records dated from 2007 to 2016. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (when the claimant has a disability during the pendency of that claim, service connection may be granted even though the disability resolves prior to adjudication of the claim). Each of these medical findings is of probative value because each is provided by a medical professional who demonstrated a familiarity with the Veteran's case, whether pursuant to VA examination, interview, and claims file review, or pursuant to years of psychological and psychiatric treatment. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). The evidence is thus in equipoise on the issue of whether the Veteran has had PTSD during the appeal period. See Alemany and Gilbert, both supra. Second, the evidence is in relative equipoise regarding whether PTSD relates to a stressor incurred during service. The October 2015 and December 2016 VA reports specifically address this issue, and indicate no relationship between the Veteran's claimed in-service stressors - the credibility of which they questioned - and psychiatric difficulties. However, the treating VA psychiatrist found otherwise. In October 2008, the physician stated that the Veteran: suffers from chronic PTSD as a result of his courageous service in Vietnam. In my professional opinion, he is totally and permanently disabled as a result of his severe symptoms of PTSD (i.e. nightmares, panic, flashbacks, and depression), with which he struggles on a daily basis. My assessment is a result of working with Mr. [REDACTED] in the outpatient mental health clinic at [VA] for approximately 19 months and seeing him regularly throughout this time. The Board also notes a May 1999 VA compensation examination report in which the examiner diagnosed the Veteran with PTSD due to his reported stressors during service in Vietnam. The evidence is thus in equipoise regarding whether a medical link exists between PTSD symptoms and stressor events in service. See 38 C.F.R. § 3.304(f)(3); see also Alemany and Gilbert, both supra. Third, the record is in relative equipoise regarding whether credible supporting evidence substantiates the occurrence of a stressor event during service. On the one hand, the Veteran's many claims of experiencing stressors do not appear credible. Since filing his original PTSD service connection claim in September 1998, he has asserted that PTSD results from service in Vietnam as a military advisor, witnessing the deaths of women and children, witnessing the death of a Vietnamese interpreter, fighting against Vietnamese boats during river patrols near Da Nang and seeing people die in waters populated by sharks, witnessing the stabbing death of a friend in a bar in Vietnam, experiencing multiple stab wounds and shrapnel and bullet wounds during combat, experiencing grenade attacks while serving on a mine sweeper, witnessing the death of a person aboard his ship who was "cut in half" after being shot, picking up dead bodies and transporting them to base, enduring capture by the enemy and confinement in a cage from which he was rescued by Navy SEALS (the leader of whom wanted to shoot the Veteran), witnessing the torture of a soldier by a group of marines during confinement in a navy brig, and being beaten and raped while confined to the brig. These various asserted stressors cannot be considered consistent. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (credibility can be generally evaluated by a showing of inconsistent statements and internal inconsistency). Moreover, much of the record tends to undermine the notion that the Veteran experienced such stressors during service. The service personnel records (SPRs) are negative for the claimed stressors. Research conducted by the Joint Services Records Research Center (JSRRC), which included a review of ship logs and a command history of the Veteran's ship, found no evidence corroborating the claimed stressors. Indeed, the only documentary evidence indicating presence on Vietnam landmass indicates that he was present in Vietnam less than one day. The sole record indicating service on Vietnam landmass consists of an entry on his ship's log, stating that he was on unauthorized absence from 1900 to 0900 between January 25-26, 1962. It can be fairly inferred that his absence on the ship meant he was ashore. However, it appears unlikely that, during his one night ashore, he experienced in Vietnam all that he claims to have experienced. Nevertheless, certain other evidence tends to undermine a firm conclusion that no credible evidence supports the claimed stressors. As noted, the evidence is clear that the Veteran did in fact serve on a minesweeper near the coast of Vietnam. The record contains hand-written notes from the Veteran's shipmates who corroborate certain of his claimed stressors by stating that their ship underwent enemy fire while patrolling off the coast of Vietnam. One shipmate even corroborated certain aspects of the Veteran's captivity story, stating that the Veteran was confronted by Vietnamese soldiers after he defended a Vietnamese interpreter they were attacking, and that he was held against his will. The Board must also consider that the Veteran's service treatment records (STRs) are not available. A review of STRs to assess claims to having been injured during captivity cannot be conducted. Despite the multi-year effort to obtain his records, it appears that the STRs were lost while in the possession of the government. As such, VA cannot point to STRs showing a lack of treatment for the claimed in-service injuries. It is as likely as not that his STRs would corroborate his claims, therefore. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991). Lastly, in assessing the credibility of the claimed stressors, particularly those indicating that the minesweeper underwent enemy fire, VA must also be mindful of the fact that the period from February 28, 1961 to May 7, 1975 is considered a period of war for a veteran who served in the Republic of Vietnam during that period. 38 C.F.R. § 3.2. His presence on Vietnam landmass in January 1962 therefore substantiates that he served in Vietnam during the "Vietnam Era" - i.e., during a period of war. As such, it is as likely as not likely that claims asserting fear of hostile military activity (e.g., undergoing enemy fire) are consistent with the place, type, and circumstance of his particular service. See 38 C.F.R. § 3.304(f)(3). Based on the foregoing, the Board cannot find that the preponderance of the evidence indicates that PTSD is not related to service. See Alemany and Gilbert, both supra. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt and grant the claim. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs