Citation Nr: 1802128 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 13-08 159 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD G. T. Raftery, Associate Counsel INTRODUCTION The Veteran served honorably on active duty with the United States Army from September 1967 to September 1969, with overseas service for a year in the Republic of Vietnam. His military occupational specialty was combat construction specialist. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico. The Board notes that the Veteran's current claim was originally adjudicated as a claim of entitlement to service connection for PTSD. In order to ensure that any diagnosis of a psychiatric disability is considered, the Board will broaden the claim under Clemons v. Shinseki, 23 Vet. App. 1 (2009), and consider whether the Veteran is entitled to service connection for an acquired psychiatric disorder, to include PTSD and major depressive disorder. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran has PTSD related to his military service. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102 , 3.303, 3.304 (f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist As the Board's decision in this case is favorable, there is no need to discuss whether VA has complied with its duties to notify and assist. 38 U.S.C. §§ 5102-5103A, 5107; 38 C.F.R. §§ 3.159, 3.326 (a). II. Legal Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). Service connection may also be granted for any disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). In order to establish service connection for a claimed condition, to include psychiatric disorders other than PTSD, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.304. Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with VA regulations; (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). Effective July 13, 2010, the regulations governing adjudication of service connection for PTSD were liberalized, in certain circumstances, with respect to the evidentiary standard for establishing the required in-service stressor. 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). In each claim for service connection, due consideration shall be given to the places, types, and circumstances of the Veteran's service as shown by the Veteran's service record, the official history of each organization in which such Veteran served, the Veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154 (a). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159 (a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a layperson. 38 C.F.R. § 3.159 (a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 ; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Board finds that the evidence reasonably supports a finding that the Veteran has an acquired psychiatric disability that is etiologically related to his active military service. As noted above, the Veteran had overseas service for a year in the Republic of Vietnam. His military occupational specialty was combat construction specialist. The evidence of record includes a VA Psychology Consultation Report following an VA staff psychologist's examination of the Veteran in August 2010. The Veteran had been referred following a positive screening for depression in which he also showed signs of PTSD. During the consultation, the Veteran described a stressor event from his Vietnam service in which he was present for a mortar attack that killed a significant number of soldiers at his installation. Though he was physically unharmed, he observed seeing the burnt bodies of his peers. He also reported losing several friends in an ensuing fire exchange. The Veteran stated that after the attack, he became irritable and aggressive with peers, slept with a loaded gun, was ostracized by other soldiers, and had nightmares about the event. The Veteran reported that upon return from Vietnam, he felt as if he was "in war with everyone," and experienced job instability due to his irritability and a self-described "short fuse." He also described significant marital and family problems. The examiner found that the Veteran exhibited signs of severe depression. He endorsed a loss of pleasure, agitation, changes in sleeping patterns, pessimism, feeling of guilt, self-dislike, loss of interest, indecisiveness, worthlessness, and irritability. He also endorsed insomnia, muscular tightness, headaches, nausea, cold sweats, undue perspiration, clammy hands, and palpitations. The examiner observed the Veteran to be anxious, apprehensive, restless, edgy, and jittery. Behaviorally, the examiner found that the Veteran presented as apathetic, socially withdrawn, feeling guilty, pessimistic, discouraged, and preoccupied with feelings of inadequacy. The Veteran also endorsed distressing and intrusive thoughts, flashbacks, startle responses, emotional numbing, problems with anger management, difficulties with sleep and concentration, and "psychological distress upon exposure to people, places or events that resemble some aspect of personal traumatic experiences." When asked about his combat stressor event, the examiner noted that the Veteran admitted to feeling intense fear, hopelessness or horror when it occurred. The examiner observed that the Veteran's responses suggested the presence of re-experiencing symptoms (i.e. recurrent distressing dreams of the event; acting or feeling as if the traumatic event were recurring); avoidance symptoms (i.e. efforts to avoid thoughts, feelings, conversations, places, or people associated with or arousing recollections of the trauma; feeling of detachment or estrangement from others; sense of a foreshortened future) and various hyperarousal symptoms. The Veteran reported that these symptoms have persisted since his return from Vietnam in 1969 and have negatively affected his family relations and ability to perform at work, the enjoyment of leisure time, and have resulted in an increased level of distress over the years. The examiner ultimately concluded that the Veteran presented with symptoms of survivor guilt, interpersonal difficulties, and occupational instability that are associated with "untreated PTSD." The examiner also found depressive symptoms with an anxious quality. The examiner diagnosed chronic PTSD and major depressive disorder. In connection with the claim on appeal, the Veteran was afforded a VA examination in September 2011. The Veteran reiterated his stressor event of being involved in a mortar attack and fire exchange in Vietnam. The examiner, a VA psychiatrist, concluded that the Veteran's stressor was adequate to support a diagnosis of PTSD and was related to the Veteran's fear of hostile military or terrorist activity. However, the examiner declined to diagnose the Veteran with PTSD because the Veteran did not persistently re-experience the stressful event; and did not exhibit persistent avoidance of stimuli associated with the trauma or numbing of general responsiveness, nor persistent symptoms of increased arousal. The examiner did not provide greater details concerning these findings. The examiner diagnosed the Veteran with major depressive disorder, but stated that it was less likely than not related to service because the Veteran did not seek psychiatric care until 2005. Therefore, the examiner opined that a temporal relationship between the Veteran's depressive disorder and his military service could not be established. As is true with any piece of evidence, the credibility and weight to be attached to medical opinions and observations are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the expert's knowledge and skill in analyzing the data, and the medical conclusion the expert reaches. In this case, the Board finds the August 2010 report by the VA staff psychologist to be more thorough and complete than the September 2011 VA examination report. In particular, the psychologist considered the Veteran's post-service job instability and family strife, as well as his lay testimony that he'd been dealing with PTSD symptoms since his time in service, in reaching a diagnostic conclusion. Moreover, the psychologist better explained her findings concerning the PTSD symptoms exhibited by the Veteran. Ultimately, the Board finds that the medical evidence of record is at least in equipoise. As previously discussed, a PTSD diagnosis by a competent and credible VA psychologist is of record, and a VA psychiatrist has confirmed that the Veteran's stressor is adequate to support a PTSD diagnosis. Under such circumstances, and granting the Veteran the benefit of any doubt in this matter, the Board concludes that service connection for an acquired psychiatric disorder, including PTSD and major depressive disorder, is warranted. ORDER Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and major depressive disorder, is granted. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs