Citation Nr: 1806288 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 14-12 180 ) 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). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Gregory T. Shannon, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1946 to October 1947 and from January 1951 to December 1952 in the United States Army. This matter come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 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 The Veteran's PTSD is related to service, to include a claimed in-service stressor. CONCLUSION OF LAW PTSD was incurred during service. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). In a January 2018 brief, the Veteran's representative raised the issue of inadequate stressor verification. However, in light of the favorable decision, the issue need not be addressed. Neither the Veteran nor his representative has raised any other issue with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). II. Service Connection - PTSD i. Applicable Law Service connection will be granted if the evidence demonstrates that a disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, 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) (2016). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means 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 lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107(b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ii. Facts and Analysis The Veteran contends he has PTSD due to three service related stressors including being told by his old company commander that his old unit had been ambushed in Korea and that 70% of his unit was killed. See October 2015 statement. Upon VA examination in July 2012, the Veteran's symptoms were found to not meet the diagnostic criteria for PTSD under DSM-IV. The examiner noted the reported stressor of the Veteran being told about his old unit did not meet Criterion A i.e. it was not adequate to support the diagnosis of PTSD. In support of this, the examiner further noted that the Veteran had no exposure to a traumatic event and stated the Veteran "did not witness the killing of his unit member; rather, he learned of this event from his commanding officer." Upon VA examination in May 2015, the Veteran was found to have a diagnosis of PTSD that conforms to DSM-5 criteria. During this examination, the Veteran explained that he became close to the men in his unit when they trained together in Ft. Meade, Maryland. "He was supposed to deploy to Korea with his unit, but his commander needed his MOS in Germany. While in Germany vet learned from someone in his command that '70% of the men in my unit were ambushed and killed after they got to Korea.'" The examiner found that his stressor met Criterion A and checked a box indicating that Criterion A can be met due to learning of traumatic events occurring to a close family member or friend. The examiner opined that the Veteran's PTSD is at least as like as not the result of his reported stressor. "The rationale for this opinion is vet's symptoms are consistent with DSM-V criteria for the diagnosis PTSD. Though he did not witness the death of his comrades, and was not subject to the ambush himself, PTSD criteria allows for the stressor to be experienced by learning of trauma to close comrades." In an August 2015 decision, the Board remanded this case in order to obtain verification of the Veteran's reported PTSD stressor and an addendum medical opinion on a diagnosed unspecified neurocognitive disorder. In a May 2017 opinion, the May 2015 examiner opined the unspecified mild neurocognitive disorder was not caused by, nor the result of, the Veteran's military service. In support of this opinion, the examiner noted the relatively recent onset of symptoms and normal findings in a December 1952 separation examination. The AOJ attempted to verify the stressor, coordinating their research with National Archives and Records Administration. Through their research, they were not able to confirm the Veteran's exact stressor. "However, during our research we were able to document that four personnel assigned to the 772nd Military Police Battalion were killed in action on January 31, 1951." Although the Veteran's exact stressor was not verified, this research provides credible support for the general premise of the stressor, that military police the Veteran knew died while in Korea. Furthermore, "corroboration of every detail is not required." See Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) Review of the evidence of record reveals there is evidence for and against granting service connection for PTSD, particularly conflicting opinions by VA examiners about whether the Veteran has PTSD. The Board finds that there is a relative equal balance of weight for and against the claim. In light of the above and resolving doubt in favor of the Veteran, the Board finds service connection for PTSD is warranted. ORDER Entitlement to service connection for posttraumatic stress disorder is granted. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs