Citation Nr: 1805776 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-12 163A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Owen, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1990 to January 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which, in pertinent part, denied service connection for posttraumatic stress disorder (PTSD). Subsequent to the December 2016 supplemental statement of the case, the Veteran submitted additional evidence in the form of LES statements. If new evidence is submitted with or subsequent to a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests Agency of Jurisdiction (AOJ) consideration. 38 U.S.C. § 7105(e) (2012). The Veteran's substantive appeal was submitted on April 1, 2014, after February 2, 2013. The record does not reflect that the Veteran requested the AOJ to review the evidence; therefore the evidence is subject to initial review by the Board. FINDINGS OF FACT 1. The evidence is at least in equipoise that the Veteran served on active duty in Kuwait. 2. The Veteran has a current diagnosis of PTSD. A VA psychologist has attributed the Veteran's PTSD to an in-service event which caused him to fear hostile military or terrorist activity. The Veteran's accounts of in-service stressors are credible and consistent with the places, types, and circumstances of his service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C. § 1101, 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. § 3.102, 3.303, 3.304, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In the present case, the Board is granting the claim of entitlement to service connection for PTSD. Therefore, no further discussion regarding VCAA notice or assistance duties is required. Service Connection Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The U.S. Court of Appeals for Veterans Claims (Court) has held that "Congress specifically limits entitlement to service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability, there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. It may also include statements conveying sound medical principles found in medical treatises. Competent medical evidence may also 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). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of a disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Analysis The Veteran contends that service connection is warranted for posttraumatic stress disorder (PTSD). Specifically, he contends that his experiences while on active duty in Kuwait have caused his PTSD. The Veteran states that he served in Kuwait in 1997. The RO denied the Veteran's claim for service connection on the basis that the Veteran's service personnel records did not reflect that he served in combat in Kuwait. See December 2016 supplemental statement of the case. The Veteran's Official Military Personnel File (OMPF) should be stored electronically as images and requested through the Defense Personnel Records Image Retrieval System (DPRIS). See M21-1, Part III, Subpart iii, 2.B.5.b (Location of OMPFs and the Means for Requesting Copies). If DPRIS returns a response indicating there is no information for the Veteran, then the RO can request copies of the OMPF through the Personnel Information Exchange System (PIES). In January 2010, the RO made a PIES request under Code 019, which for PTSD, requests pages from the personnel file showing unit of assignment, dates of assignment, participation in combat operations, wounds in action, awards and decorations, and official travel outside the United States. It does not appear that there was a response from this request, nor does it appear that a second attempt was made to request information from PIES. February 2010 and May 2010 DPRIS requests returned no images. A June 2010 DPRIS response notes that the Veteran's unit history for the 615th Aviation Support Battalion verified that an element from the battalion participated in the 1997 Intrinsic Action exercises, but the history did not document the incidents that the Veteran described. DPRIS also searched the available 1997 U.S. Army record collection and were unable to locate documentation verifying the incidents the Veteran described. Military personnel records associated with the claims file reflect that the Veteran was stationed in Germany from May 1991 to May 1993 and in Korea from September 1994 to September 1995. Below this, there is a handwritten note of dates from February 1997 to June 1997, but no location is listed. The Record of Assignments goes through October 1995, with no indication of duty assignments up to or through separation. Service treatment records reflect that in June 1997, the Veteran reported with swelling in his legs, beginning four months prior while he was in on temporary duty assignment in Kuwait. The Veteran underwent testing and records were sent to "T.M.C." A letter dated April 24, 1997 and written to the Veteran's insurance company by A.W., Company Commander of the 615th Aviation Support Battalion, Intrinsic Action 97-01, states that the Veteran had been deployed to Kuwait under A.W.'s command since February 17, 1997 and would remain in Kuwait until June 1997. Subsequent to the December 2016 supplemental statement of the case, the Veteran submitted Leave and Earnings Statements (LES). For the periods of March 1-31, April 1-30, May 1-31, and June 1-30, 1997, the Veteran's LESs reflect pay for hostile fire/imminent danger pay (HFP/IDP) and hardship duty pay (HDP). The LES for July 1-31, 1997 does not reflect HFP/IDP and HDP pay, but reflects "HFP/Combat Zone" through June 30, 1997. Although the Veteran's military personnel records do not list active duty in Kuwait in 1997, they appear incomplete, only listing duty stations up through 1996. The Veteran's commanding officer stated that the Veteran was serving in Kuwait, and medical evidence reflects treatment for a condition that began in Kuwait. Furthermore, the Veteran's LESs document hostile fire/imminent danger pay and hardship duty pay, as well as hostile fire pay in a combat zone during the time period that he states he was serving in Kuwait. Therefore, the Board finds that the evidence is at least in equipoise that the Veteran served on active duty in Kuwait in 1997. The Veteran claims that while deployed in Kuwait, he participated in the recovery mission of Humvee, where upon arrival, the vehicle was flipped over with soldiers still inside, burnt and dead. He also participated in the recovery of unit who was sent to the wrong place and shot. During the recovery, he saw the dead and wounded soldiers. The Veteran also reports that someone tried to drive into his camp and was shot. As a result, his unit's ammunition was taken and they were unable to defend themselves, resulting in them being "terrified." See July 2009 VA psychiatry treatment records. VA treatment records reflect that in July 2009, the PTSD Clinical Team, which consisted of two social workers and Dr. O, a psychiatrist, diagnosed the Veteran with PTSD and major depressive disorder, recurrent, moderate, based on his claimed stressors. In December 2010, the Veteran saw Dr. S, a clinical psychologist, who diagnosed the Veteran with PTSD and found that the Veteran's stressors led to feelings of intense fear, helplessness, or horror. Treatment records reflect that the Veteran continued to see Dr. O, who listed his diagnosis as PTSD. See 2013 through 2016 VA psychiatry notes. Based on the evidence of record, the Board finds that service connection for PTSD is warranted. In this regard, the Veteran's claimed stressors of exposure to fear of hostile military or terrorist activity, causing death and being subject to attack, are consistent with the places, types, and circumstances of the Veteran's service as detailed by his statements and service records. In turn, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). Significantly, a VA psychologist has confirmed that the claimed stressors were adequate to support a diagnosis of PTSD and that the stressors were related to the Veteran's fear of hostile military or terrorist activity. While these stressors have not been verified, they are apparently consistent with the Veteran's in-service experiences and circumstances. 38 C.F.R. § 3.304(f)(3). Accordingly, the Board finds that the Veteran has demonstrated that his PTSD has been sufficiently linked to wartime experiences. In sum, when resolving the benefit of the doubt in favor of the Veteran, the Board finds that the statutory and regulatory criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. § 5107(b) (2012); see Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also 38 C.F.R. § 3.102. Accordingly, resolving reasonable doubt in his favor, service connection for PTSD is granted. ORDER Entitlement to service connection for PTSD. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs