Citation Nr: 18143782 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-36 004 DATE: October 22, 2018 ORDER Entitlement to service connection for an anxiety disorder, variously diagnosed as posttraumatic stress disorder (PTSD) and a generalized anxiety disorder, is granted. FINDING OF FACT The Veteran’s current PTSD is of service origin. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service from November 1964 to August 1968. He served in Vietnam from November 1965 to October 1966.   PTSD In adjudicating a claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (under the criteria of the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 4.125. 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). If a stressor claimed by a veteran is related to the veteran's fear of hostile military activity, and a VA psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary. 38 C.F.R. § 3.304(f)(3). "Fear of hostile military activity" is defined to mean that a veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the veteran or others, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror. Id. The list of examples of such an event or circumstance specifically includes incoming fire. Id. The Veteran has asserted through his statements of record that he experienced stressors while serving in Vietnam that made him fear for his life. Specifically, the Veteran has repeatedly stated that while serving in Vietnam his base came under fire on several occasions and that each day he feared being killed in another attack. This stressor is consistent with the places, types and circumstances of his service in Vietnam. The record indicates that he served in Vietnam from November 1965 to October 1966 and that he was stationed at Da Nang. His military occupational specialty was an ammunition technician. These records corroborate the Veteran's statements concerning the circumstances of his service. In support of his claim, the Veteran submitted a September 2014 examination report from his treating psychiatrist, J. L., M.D. Dr. L. diagnosed the Veteran as having PTSD, depression associated with PTSD, and anxiety-flashbacks. He reported that the Veteran’s diagnoses were related to combat. In conjunction with his claim, the Veteran was afforded a VA examination in December 2014. At that time, the examiner diagnosed the Veteran as having anxiety disorder, NOS. He stated that he saw no clear or exclusive connection to military experience. As to PTSD, the examiner indicated that the Veteran was devoid of creditable symptoms in cluster D and had some sleep and vigilance in cluster E that was contaminated by his environmental surround. His memories had little intrusive character, and dreams he described were neither regularly nor exclusively related to his wartime experience. The examiner stated that certainly the Veteran was afraid in Vietnam. He further opined that there was some residual anxiety and a lot of this was as much related to his return from Vietnam as it was to anything else. He indicated that the Veteran less likely than not met the criteria for a diagnosis of PTSD. The Veteran was afforded an additional VA examination in June 2016. The examiner indicated that the Veteran’s symptoms did not meet the criteria for a diagnosis of PTSD under DSM-5 criteria. The examiner diagnosed the Veteran as having a diagnosis of other specified anxiety disorder. The examiner indicated that the stressor criteria requirement had been met. The examiner stated that based on the content of the Veteran’s current symptoms, it was less likely than not (less than 50% probability) that the Veteran's current mental health symptoms were related to or caused by his military service (including the reported stressors). She stated that a lack of finding of a diagnosis of PTSD was not meant to minimize the significance of the Veteran's service to our country in Vietnam, but instead exemplified the resilience he had shown over the years. She noted that a wide range of clinical literature had shown that the great majority of persons exposed to Criterion A stressors, including combat veterans, did not go on to develop full or chronic PTSD. A more typical pattern was immediate symptoms that resolved to baseline or near baseline function over a period of time. She stated that the Veteran likely met this pattern and fell in the majority of those who did not have PTSD or other psychiatric illness despite exposure to Criterion A stressors. In a March 2018 report, Dr. L. indicated that he had reviewed the records provided by the Veteran and it was obvious that he did have the diagnostic criteria for PTSD, as noted not only in his record but at the time of examination in 2014 documented in the DBQ. He indicated that the Veteran’s PTSD was related to hostile military activity during his service in Vietnam. He stated that it was well accepted now that being exposed to specific combat was not the necessary cause of PTSD. Both real and perceived experiences could cause PTSD. He noted that he used this example in the courtroom on many occasions when he mentioned 9/11 everyone in the courtroom seeing airplanes going through New York skyscrapers. He noted that children who witnessed their parents fighting had worse PTSD than those who experienced the violence. Therefore, the Veteran’s PTSD was related to his fear or reaction to hostile military or terrorist activity in Vietnam. He stated that it was incomprehensible that an in-country Vietnam Veteran who also had other complications of exposure, for example to Agent Orange causing prostate cancer, would not have a diagnosis of PTSD. He indicated that the mistake in diagnosis was obviously a function of the examiner and not the Veteran’s experience. In this case, all examiners, VA and private, agree that the Veteran met the requisite stressor criteria for a diagnosis of PTSD as a result of his Vietnam service. Moreover, his military occupational specialty and the base where he was housed, being the subject of mortar fire, also support the stressor criteria. The issue before the Board is whether the Veteran meets the criteria for a diagnosis of PTSD. In support of his claim, the Veteran has submitted several reports from his private psychiatrist, who is board certified and was also a Battalion Surgeon while in Vietnam in 1967-68, indicating that he has met the criteria for a diagnosis of PTSD, citing to his service in Vietnam and the duties performed while there. In contrast, both the December 2014 and June 2016 examiners indicated that the Veteran did not meet the criteria for a diagnosis of PTSD. However, the December 2014 VA examiner did indicate that there was some residual anxiety and a lot of this was as much related to his return from Vietnam as it was to anything else. While the December 2016 VA examiner provided a negative opinion, she did indicate that her relationship to the Veteran was not that of a traditional patient/doctor relationship and that it was only a one time evaluation for purpose of compensation. Although the Board is not giving preference to the private examiner’s opinion, the opinions of record are at least in equipoise. The Veteran’s private physician has had the opportunity to treat the Veteran on a long-term basis and to review his record in detail prior to providing his opinion. These factors allow for a finding that the opinions of record as to whether the Veteran currently has PTSD related to his period of service are in equipoise. For the foregoing reasons, the Board finds that the evidence is at least in equipoise that the Veteran has an anxiety disorder, to include PTSD, that is related to the in-service stressor of coming under fire. Entitlement to service connection for an anxiety disorder, to include PTSD, is therefore warranted under 38 C.F.R. § 3.304(f). K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S.Kelly, Counsel