Citation Nr: 1730584	
Decision Date: 08/01/17    Archive Date: 08/11/17

DOCKET NO.  09-43 300	)	DATE
	)
	)

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


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and bipolar disorder. 


REPRESENTATION

Appellant represented by:	Robert V. Chisholm, Attorney at Law


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Setter, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1978 to December 1983.  

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.  

In January 2012, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge.  A transcript of this proceeding is associated with the claims file.  

In a March 2016 decision, the Board denied the Veteran's claim for entitlement to service connection for an acquired psychiatric disorder. The Veteran filed an appeal of the Board' decision, and in November 2016, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Remand (JMR), which vacated the portion of the Board's March 2016 decision that denied the Veteran's claim for entitlement to entitlement to service connection for an acquired psychiatric disorder, and remanded the matter for proceedings consistent with the motion. 

This matter originally came before the Board in April 2012, at which time the Board remanded the matter for additional development, to include a VA examination.  The Board remanded the case for another VA examination in May 2014.  The matter has been returned for appellate consideration in light of the JMR above and the Board is satisfied that there has been substantial compliance with the JMR and previous remands.  The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998).




FINDING OF FACT

PTSD is at least as likely as not causally related to the Veteran's active duty service.

CONCLUSION OF LAW

The criteria for service connection for PTSD, have been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to provide notice and assistance with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). However, in light of the favorable decision herein, no further discussion of compliance with these duties is necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007).

II. Service Connection

Generally, to establish service connection a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). 

Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-IV or DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f), 4.125(a). If the evidence establishes that the 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.  See 38 C.F.R. § 3.304(f).  

During the pendency of the claim all references to the DSM-IV have been updated to refer to the DSM-5, which utilizes altered criteria for diagnosing PTSD. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). However, this change does not apply to appeals that were pending before the Board (i.e. certified for appeal) prior to August 4, 2014, even if such claims are subsequently remanded. Id. As such, the criteria for diagnosing PTSD contained in the DSM-IV are still applicable in this case, and any diagnoses made based on those criteria are still probative of the issue at hand. Id. As the Veteran's claim was pending before the Board prior to August 4, 2014, whether the Veteran has a diagnosis of PTSD may be determined based on the criteria in the DSM-IV.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Evidence and Analysis

Upon review of the evidence, the Board finds entitlement to service connection for PTSD is warranted. 

In support of his claim for service connection for an acquired psychiatric disorder, the Veteran has alleged that he experienced psychiatric symptoms during service and after relating to bipolar disorder, depression, anxiety, and PTSD.  He alleged that his PTSD was related to stressors related to his military occupational specialty as a parachute rigger in the Air Force.  

The first element of service connection for PTSD is medical evidence establishing a diagnosis of PTSD under 38 C.F.R. § 4.125(a).  The Veteran has received three VA examinations specific to PTSD, in June 2008, April 2012, and September 2014.  In each examination, the examiners found all the criteria as delineated under DSM-IV or DSM-5, with the exception of Criterion A, which is defined as "exposure to actual or threatened:  a) death, b) serious injury, c) sexual violation, in one or more way(s): direct exposure, witnessing the trauma, learning that a relative or close friend was exposed to a trauma, or experiencing repeated or extreme exposure to aversive details of the traumatic events (e.g., first responders, medics)." See AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, FIFTH EDITION (DSM-5) (2013).

Diagnoses of PTSD by health care professionals are presumed to be in accordance with applicable governing medical criteria. See Cohen v. Brown, 10 Vet. App. 128, 139-40 (1997). The Veteran has reported symptoms of frequent flashbacks and occasional nightmares, with periodic panic attacks.  During the hearing with the undersigned VLJ in January 2012, the Veteran described his in-service stressor of a pilot who "got ejected out of an aircraft" brought his wife and children to him and reportedly told him "if it wasn't for me, he wouldn't be alive." The Veteran learned of the threatened death or serious injury of this individual face-to-face; an individual he was responsible for since he packed his parachute.

The Veteran did not seek treatment for any type of nervous condition or depression during service, and was deemed sound upon entry to service. However, the Veteran's service treatment records indicate at least two physical altercations, and that the Veteran was referred to substance abuse treatment after testing twice for the presence of marijuana, in addition to documented alcohol abuse.  A military health record from January 1980 indicates "atypical impulse control disorder."  In the Veteran's lay statements, he indicates that he abused alcohol during this period, continuing after service.  

Post service VA treatment records show psychiatric treatment and include a diagnosis of PTSD.  See December 2012 VA psychiatric note.  


In June 2008, the Veteran received a VA PTSD examination.  The Veteran reported being in a depressed mood, and that he had problems with impulse control in relation to drugs, and road rage incidents.  The Veteran was diagnosed with bipolar affective disorder, type II, with a history of alcohol, cocaine, and marijuana abuse.  The examiner did not provide an opinion whether the Veteran's diagnosed psychiatric disorder was related to military service. To have probative value, a medical opinion must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). Here, because of the inadequate discussion of the findings of the examination, the Board finds that this examination to be of limited probative value. Id.

In April 2012, the Veteran received another VA examination. In evaluating the possibility of PTSD, the examiner noted that the stressor described by the Veteran did not meet Criterion A (under DSM-IV criteria) adequate to support the diagnosis of PTSD, in evaluating the Veteran's claim that his occupational specialty as a parachute rigger was his stressor for PTSD diagnostic purposes.  The examiner did note the Veteran met the full DSM-IV criteria at the time for a diagnosis of bipolar disorder type I, and also the criteria for alcohol abuse. The examiner opined in one section of his report that it was less likely than not that the Veteran's diagnosed bipolar disorder was related to military service, but in another section of the same report, that the diagnosed bipolar disorder was related to service. 

In September 2014, the Veteran received another VA examination, where again, the examiner found the lack of a stressor significant enough to meet Criterion A adequate to support a formal diagnosis of PTSD. The examiner did note the symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, sleep impairment, disturbances of motivation and mood, difficulty in maintain work and social relationships, and difficulty adapting to stressful circumstances.  Bipolar disorder with anxious distress was diagnosed. The examiner remarked that the Veteran did not seek treatment for a psychiatric disorder until 2006.  However, the claims file notes the Veteran's 30-day hospitalization in 1990 at the Dayton, Ohio VAMC for mental health and substance abuse reasons or the August 2005 inpatient admission for psychiatric reasons to the Cincinnati VAMC, with subsequent transfer to the Chillicothe, Ohio VAMC. 

The Veteran and his attorney submitted a medical opinion of Dr. F. in July 2017.  The March 2017 report indicated that Dr. F reviewed the Veteran's entire claims file in its entirety and interviewed the Veteran.  Dr. F. concluded that the Veteran has a current diagnosis of PTSD and that he met the criteria for PTSD.  Dr. F. concluded that PTSD is at least as likely as not due to in-service stressors.  It was noted that the VA examiners discounted his in-service stressor as not sufficient to cause PTSD.  It was noted that this opinion was inconsistent with the opinion of the VA psychiatrist who diagnosed him with PTSD and provided treatment that was geared toward PTSD related symptoms.  In addition, it was indicated that the VA disability examiners erred by failing to recognize that his repeated exposure to aversive details of the threatened deaths of pilots ejecting from airplanes is sufficient to meet the A criterion under DSM-5.  Likewise, the in-service stressor meets the A criterion under DSM-IV in that he has been "confronted with an event or events that included the threatened death or injury of "self or others."  Dr. F noted that the Veteran wasn't simply packing parachutes, he was repeatedly being confronted with the threatened death or injury of pilots ejecting from planes.  It was indicated that the A criterion can be met experiencing repeated or extreme, exposure to aversive details of the traumatic event(s).  It was stated that the Veteran did not need to be threatened with death or injury to meet the criterion, he just needed to be exposed to the aversive details of others being, exposed to threatened death or injury.  This is consistent with the Veteran's reports of multiple, emotion-filled work-related exposures to reports from pilots that they had to eject from their airplanes.  He consistently reported finding this to be overwhelming.  The examiner stated that the Veteran does not need to have experienced the threatened death of having to eject from an airplane himself to satisfy the A criterion for PTSD or have the threat of potentially having, to eject from an airplane someday. It was noted, for example, that the DSM-5 uses police officers exposed to details about child abuse as an illustration. The police officer could qualify for the PTSD A criterion simply by hearing the aversive details of the events (and despite the fact that the, police officer did not witness the event and also was not, in danger themselves of being a child who was abused).  It was indicated that this is similar to the Veteran's case where he qualifies for the PTSD A criterion because he was repeatedly exposed to the aversive details of pilots ejecting from their planes (he noted that he in fact saved 8 pilots and he was exposed to the aversive details of those incidents).  The Veteran's January 2012 testimony was noted that the Veteran reported that a pilot who got ejected out of an aircraft brought his wife and children to him.  The examiner indicated that the Veteran learned of the threatened death or serious injury of this individual face-to-face; an individual he was responsible for since he packed his parachute.  The examiner indicated that this learning of the incident of the threatened death of-the pilot being ejected while wearing his parachute along with being in an environment with repeated exposure to such aversive details of incidents like this is sufficient to meet the A criterion for PTSD.  It is reasonable to conclude that the symptoms that manifested themselves during his military service such as aggressiveness and impulse control problems, stomach and heart issues associated with anxiety and the nerves associated with obsessively packing and re-packing his parachutes were at least as likely as not related to the onset of PTSD.  He reported that he tried to self-medicate these problems with substance use, and this substance use therefore is at least as likely as not secondary to his other mental health concerns.  The examiner further concluded that the Veteran does not have a diagnosis other than PTSD.  

In this case, the Board finds that the evidence is in equipoise as to whether the Veteran has a current diagnosis of PTSD related to service. The Veteran's lay statements as to his experiences in service have been consistent with his duties in service which include rigging parachutes.  While several VA examiners did not conclude the Veteran met Criteria A for a diagnosis of PTSD, the private opinion of Dr. F. concludes that the Veteran meets all the criteria for a diagnosis of PTSD and concludes that PTSD is related to the Veteran's experiences in service.  The July 2008 rating decision conceded that the Veteran's reported service duties of being a rigger packing parachutes as being was a stressful job.  The opinion of  Dr. F. submitted by the Veteran indicates that the only psychiatric diagnosis is PTSD.  The Board finds that based on the facts of this case and resolving any doubt in the favor of the Veteran, that the evidence is in equipoise and that entitlement to service connection for PTSD is warranted.


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs