Citation Nr: 1756463	
Decision Date: 12/07/17    Archive Date: 12/15/17

DOCKET NO.  16-53 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

G. Johnson, Associate Counsel


INTRODUCTION


The Veteran had honorable active service in the United States Army from September 1980 to September 1984.  The Veteran received multiple awards and medals including the Army Achievement Medal.  The Veteran has performed active duty for training and inactive duty training at various times.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

The Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge in May 2017.  A transcript of the hearing has been associated with the claims file.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDING OF FACT

It is at least as likely as not that the Veteran's PTSD is related to service.


CONCLUSION OF LAW

The criteria for entitlement to service connection for PTSD with major depressive affective disorder are met.  38 U.S.C. § 1131; 38 C.F.R. § 3.303.



REASONS AND BASES FOR FINDING AND CONCLUSION

I. VA's Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance.  38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.326(a).  In light of the favorable disposition of the claim for service connection for PTSD, the Board finds that any deficiencies with regard to the duty to notify or assist is non-prejudicial, and thus, no further discussion of VA's duties to notify and assist is necessary.

II. Analysis

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection may also 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.  38 C.F.R. § 3.303(d).

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).

In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the Veteran's military records and all pertinent medical and lay evidence.  Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f).

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.  "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.  38 C.F.R. § 3.304(f).

If a Veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the Veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence.  Cohen v. Brown, 10 Vet. App. 128, 142 (1997); Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors.  Doran v. Brown, 6 Vet. App. 283, 289 (1994).

The question of whether a Veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts.  Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on recon., 1 Vet. App. 406, 407 (1991).  Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators.


III. Service Connection for PTSD

The Veteran asserts that his PTSD is related to service.  At a May 2017 Board hearing, the Veteran testified that his claimed stressor occurred when he was in Somalia, Africa with his unit to secure an airport.  During the incident, the Veteran's unit was lined up by Somalian soldiers.  A Somalian soldier repeatedly hit the Veteran with his weapon, put his weapon to the Veteran's head and pulled the trigger three times.  The Veteran believed he was going to die.  The weapon misfired, and the Veteran was not shot.  The Veteran testified that he was diagnosed with PTSD in 2010.  The Veteran's spouse testified that when the Veteran returned from Somalia, he had nightmares, would fight in his sleep, was distant, and was not the same person.  The Veteran's representative asserted that the Veteran's treatment provider, Dr. M.C., had diagnosed the Veteran with PTSD and had said in an expert medical opinion that the Veteran's claimed in-service stressor would have been sufficient to cause the Veteran's PTSD.

The Veteran served in the United States Army from September 1980 to September 1984.  Service treatment records are silent as to any complaints, treatment or clinical diagnosis for PTSD.

July 1987 military personnel records reflect that the Veteran was a member of a Military Police Company of the United States Army Reserve.  In July 1987, the Veteran's unit was deployed to Somalia from July 1987 to August 1987.  October 1987 military personnel records reflect that the Veteran was awarded the Army Achievement Medal for meritorious service from July 1987 to August 1987.

In September 2012, a fellow service member C.H. stated that he was the sergeant in charge, and that his company had told him to get his squad ready to secure an airport in Somalia.  When they got there, the Somalian soldiers were already there; the Somalian soldiers surrounded their vehicle and made them get out and line up.  When they got in front of the Veteran, the Somalian soldiers attacked him, and put a gun to his head.  They had the Veteran get up, and members of his squad helped the Veteran to his feet.  The Somalian soldiers walked away laughing.

In September 2012, another fellow service member, J.H., reported that they were ordered to go to an airport in Somalia to secure the area.  When they got there, Somalian soldiers were already there.  The Somalian soldiers stopped and surrounded their vehicle and made them get out of the vehicle and lined them up.  J.H. was standing to the right of the Veteran.  The Somalian soldiers got in front of the Veteran and hit the Veteran with a weapon.  The Veteran went to the ground and the Somalian soldiers hit him again and placed the barrel of a rifle to his head.

In October 2012, a fellow service member, H.J., reported that in July 1987, his unit was in Somalia to secure an airport.  He heard about what happened to the Veteran the next morning.  When he went to speak with him, the Veteran was dazed, shaky and confused.

Post-service treatment records reflect a diagnosis of PTSD from December 2010.  December 2010 VA treatment records reflect a diagnosis of PTSD and depression.

May 2015 and May 2016 treatment records reflect a diagnosis of PTSD under ICD-9-CM 309.81 by a VA psychiatrist.  The VA psychiatrist noted that the Veteran's "trauma/abuse" was in Somalia, where the Veteran had a gun put to his head by a Somalian soldier.  The Somalian soldier pulled the trigger three times and nothing happened.  The treatment provider also noted "Significant Psychosocial and Contextual Factors" as exposure to war.  The treatment records also reflect a diagnosis of major depressive disorder and major depressive affective disorder, single episode, severe, without mention of psychotic behavior.

Resolving all reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met.

Military personnel records reflect that the Veteran was in Somalia from July 1987 to August 1987 as a member of the Military Police Company of the United States Army Reserve.

At a May 2017 Board hearing, the Veteran testified that he believed he was going to die, when he was singled out and attacked by a Somalian soldier, who beat the Veteran, put a weapon to the Veteran's head and pulled the trigger three times; the weapon misfired, and the Veteran was not shot.  Statements from fellow service members corroborate the Veteran's experience of being singled out and beaten by the Somalian solders, and having a weapon put to his head, and another statement from a fellow service-member reflects that following the incident, the Veteran was dazed, shaken, and confused.  The Board finds that the Veteran's testimony and the lay statements of fellow service members are competent, credible and probative.

May 2015 and May 2016 VA treatment records reflect a diagnosis of PTSD and establish that the Veteran's PTSD is related to service.  The treatment provider noted that the Veteran's trauma or abuse was in Somalia, the Veteran had a gun put to his head by a Somalian soldier, and the Somalian soldier pulled the trigger three times and nothing happened.  The May 2015 and May 2016 VA treatment records provide competent medical evidence of a diagnosis of PTSD related to an in-service stressor.  The Board finds the May 2015 and May 2016 VA treatment records are competent, credible and probative, and coupled with the other evidence of record including the military personnel records, VA treatment records, and lay evidence, support a conclusion that service connection for PTSD is warranted.

Additionally, the Veteran has been diagnosed with major depressive affective disorder.  The scope of a mental health disability claim includes any psychiatric diagnoses that may reasonably be encompassed by the Veteran's reported symptoms.  See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009).  Accordingly, the Board finds that that May 2015 and May 2016 VA treatment records support a conclusion that the Veteran's diagnosed PTSD and major depressive affective disorder are at least as likely as not related to service.



ORDER

Service connection for PTSD with major depressive affective disorder is granted.




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs