Citation Nr: 1804830 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 14-17 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), anxiety disorder, and depression. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Sean Raymond, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1980 to September 1984 and from September 1984 to May 1987. The Veteran's service from October 1980 to September 1984 is characterized as honorable. The Veteran's service from September 1984 to May 1987 is characterized as other than honorable. This appeal is before the Board of Veterans' Appeals (Board) from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In June 2017, the Veteran appeared before the undersigned at a Travel Board Hearing. A hearing transcript is of record. FINDING OF FACT The evidence is in equipoise as to whether the Veteran has PTSD incurred in or related to honorable active duty service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As the Board grants the full benefit sought by the Veteran in this appeal, VA's duties to notify and assist are satisfied, and the Veteran is not prejudiced with respect to the issue on appeal. See 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156, 3.159. II. Service Connection for an Acquired Psychiatric Disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection for PTSD specifically requires (1) medical evidence establishing a diagnosis of the disorder in accordance with the provisions of 38 C.F.R. § 4.125(a); (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). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record, and not every item of evidence has the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Id. The Veteran claims that he suffers from an acquired psychiatric disorder due to service. Specifically, the Veteran claims that he suffers from PTSD due to an in-service stressor involving a May 1981 aircraft crash and fire aboard the U.S.S. Nimitz that resulted in numerous injuries and fatalities. The Veteran submitted news articles covering the incident, a December 2010 buddy statement attests to the Veteran's involvement in responding to the incident, and the Veteran's military personnel records reflect the Veteran was assigned to the Nimitz and served as a hull maintenance technician fireman during that time. In light of such evidence, the Board concedes the occurrence of this claimed in-service stressor. The Board additionally notes that this incident occurred during a period of honorable active service, and thus, the Veteran's claim is not barred from consideration of disability compensation benefits. 38 C.F.R. § 3.12(a). The Board therefore turns to whether the evidence establishes that the Veteran has PTSD or another acquired psychiatric disorder incurred in or otherwise due to the Veteran's period of honorable active service. The Veteran submitted a completed May 2017 PTSD disability benefits questionnaire (DBQ) with an accompanying medical opinion from a private psychologist, as well as a separate June 2017 statement from another psychologist supporting the May 2017 private opinion. The May 2017 private DBQ and opinion reflect that the Veteran presented with symptoms sufficient to render a diagnosis of PTSD in accordance with the provisions of 38 C.F.R. § 4.125. The May 2017 private psychologist opined that the Veteran's PTSD is at least as likely as not due to the abovementioned in-service stressor. The May 2017 DBQ and opinion reflect a detailed review and examination of the Veteran's history and symptoms. Therefore, the Board finds the May 2017 DBQ and opinion adequate for VA purposes, and highly probative. The additional, June 2017 statement from another private psychologist affirms the May 2017 private opinion; however, the June 2017 statement does not indicate that the June 2017 psychologist actually examined the Veteran, and is largely inconsequential. While the May 2017 private DBQ and opinion weigh heavily in favor of service connection for PTSD, the record is not without evidence that weighs against the claim. A November 2011 VA psychology consult record reflects an attending psychiatrist's impression that the Veteran's actions and reporting were "suggestive of malingering." A March 2012 VA examiner opined that the Veteran did not exhibit significant PTSD symptoms, and instead diagnosed mood disorder and attention deficit disorder, yet provided no opinion as to whether such disorders were related to service. The March 2012 VA examiner also did not consider the Veteran's in-service stressor aboard the Nimitz as fact. A January 2014 VA examiner opined that the Veteran did not meet the diagnostic criteria for PTSD, and diagnosed anxiety disorder unrelated to military service as well as an unspecified personality disorder. Despite these unfavorable opinions and potential credibility issues, the Board cannot ignore the favorable evidence of record. While unfavorable opinions outnumber the favorable May 2017 private opinion, the Board cannot furnish adequate reasons and bases for favoring a specific VA opinion over the May 2017 private opinion - which appears adequate for VA purposes in all respects. Moreover, the Board cannot rely on the March 2012 VA examination report, as the examiner did not consider the Veteran's in-service stressor aboard the Nimitz as fact. Consequently, the only VA examination suitable for reliance is the January 2014 VA examination that conflicts with, but does not necessarily outweigh, the May 2017 private opinion. Lastly, the May 2017 private psychologist addressed and opined against potential non-service related etiologies proposed by VA examiners such as childhood sexual abuse. The Board acknowledges the possibility that the May 2017 private examination may have been predicated on malingering or some degree of noncredible reporting by the Veteran. However, the Board is disinclined to make the factual leap of discerning to what extent the Veteran's reporting might have been false and concluding that the May 2017 private examiner failed to detect, or chose to ignore such behavior. In light of the conceded fact of the Veteran's claimed stressor, coupled with past VA examiner observations of symptoms of at least some type of mental disorder, the Board shall not find potential credibility issues to sabotage all evidence in favor of the Veteran's claim. In light of the foregoing, the Board finds the evidence to be in relative equipoise and the claim is granted. ORDER Entitlement to service connection for posttraumatic stress disorder is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs