Citation Nr: 18150501 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 16-48 861 DATE: November 15, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The Veteran’s diagnosis of PTSD is attributable to the Veteran’s military service. CONCLUSION OF LAW The criteria for entitlement to service connection PTSD have been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(f) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran is a Vietnam Veteran who had active service in the United States Army as a water craft operator from August 1966 to August 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from the October 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) denying the Veteran’s claim for entitlement to service connection for PTSD. The Veteran has a current diagnosis of depressive disorder. After review of the claims file, the weight of the evidence shows, the Veteran’s depressive disorder did not manifest until many years after service and as there is no competent evidence of proximate causation by any injury or disease in service, the criteria for service connection has not been meet and warrants no further discussion. 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. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). In light of the fully favorable decision as to the issue of entitlement to service connection for PTSD no further discussion of compliance with VA’s duty to notify and assist as to those issues are necessary. Mlechick v. Mansfield, 503 F.3d 1340 (Fed. Cir. 2007). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing this disorder based on examination findings and in accordance with the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5); 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. §§ 3.304 (f), 4.125(a). 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 the evidence establishes that the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. See 38 C.F.R. § 3.304 (f)(2); see also 38 U.S.C. § 1154 (b) (2012). If a stressor claimed by a veteran is related to the veteran’s fear of hostile military activity, and a 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, 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. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Entitlement to service connection for a psychiatric disorder, to include PTSD In a May 2015 statement, the Veteran stated, “I have recently learned that the nervous condition that I have had for years is called PTSD. I am requesting to open a claim for PTSD.” In August 2015, the Veteran submitted a Statement in Support of Claim for Service Connection for PTSD. The Veteran reported being at Cam Ranh Bay in Vietnam; delivering equipment up and down a river with one way in and one way out; and dropping grenades in the water all night long in order to make sure the boat did not get sabotaged. The Veteran stated that he was in direct combat with enemy; lived under constant threat of enemy mortars, rockets and sniper fire; and endured “the horror which was the TET Offensive.” The Veteran stated that he was thankful the boat did not come under attack during the time it travelled up and down the river. He reported that he still has memories about what he experienced when he served in Vietnam. The Veteran’s service records reflect that he served in Vietnam as a water craft operator. The Board finds that the claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. In August 2015, the Veteran provided a copy of the examination report from Dr. H. Jabbour, a private psychiatrist. The Veteran was seen by Dr. Jabbour in July 2015. During the visit, the Veteran reported that he was a widower and his wife had passed away after a battle with cancer. The Veteran reported that he served one combat tour in Vietnam from 1967 to 1968 and that he experienced flashbacks and nightmares accompanied by night sweats associated with his Vietnam service. The Veteran reported that as a water craft operator, he would go up and down river delivering equipment at various times and going up and down the river made himself and his comrades feel like moving target because there was only one way in and one way out. He reported dropping “hand grenades into the water all night long in order to make sure that the boat did not become sabotaged.” He stated he felt lucky that his boat did not come under attack while they traveled up and down the river. The Veteran also stated that they always worried that they would be killed or attacked at some point on the river and he could see fire in the distance from other battles. He reported that on quite a few occasions that he would have to climb a rope ladder onto large naval ships in order to get supplies. He stated that this was both mentally and physically challenging due to the distance he would climb and as well as the situation. The Veteran reported he found it very difficult returning to the United States after service in Vietnam. He reported that he felt very hyper-alert, guarded, hyper vigilant, and would become jumpy and startled very easily. The psychiatrist diagnosed the Veteran with Post Traumatic Stress Disorder and Major Depressive Disorder, Moderate to Severe, without Psychotic features. The doctor opined, “it is at least as likely as not (50 or greater probability) that the Veteran’s post traumatic stress disorder was incurred in or caused by his military service and results from a fear of hostile military or terrorist activities.” The Veteran was afforded a VA Compensation and Pension PTSD examination September 2015. The examination was conducted by a psychologist. The psychologist indicated that the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria based on that day’s evaluation, but the Veteran did have unspecified depressive disorder. The psychologist noted that the Veteran reported, “When I was in Vietnam, the places we would go on the boat, posed a threat to all of us. I was on a U-boat. We would go places where planes couldn’t land. We would go up rivers and if we didn’t come down in time, we’d have to stay in the river overnight. We would have to throw hand grenades into the water so people wouldn’t sabotage the boat.” The psychologist indicated that this stressor met Criterion A, and was adequate to support the diagnosis of PTSD and was related to the Veteran’s fear of hostile military or terrorist activity. The psychologist indicated that the Veteran’s reported in-service stressor satisfied Criterion A because the Veteran had directly experienced traumatic events and witnessed, in person, the traumatic event(s) as they occurred to others. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion that contains only data and conclusions is not entitled to any weight. It is the factually accurate, fully articulated, sound reasoning for the conclusion, not the mere fact that the claims file was reviewed, that contributes probative value to a medical opinion.” See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Due to the thoroughness and detail of the examination of the July 2015 private examination diagnosing PTSD, the Board finds it to be of greater probative value than the September 2015 VA examination that determined the Veteran did not have a diagnosis of PTSD that conformed to DSM-5 criteria. The VA psychologist confirmed that one of the stressors reported to the private psychiatrist was adequate to support a diagnosis of PTSD related to the Veteran’s fear of hostile military or terrorist activity due to him directly experiencing the traumatic event and witnessing, in person, the traumatic events as they occurred to others. Hence, the Board finds that in the absence of clear and convincing evidence to the contrary, the Veteran’s lay testimony has established the occurrence of the claimed in-service stressor. After review of the private positive opinion, the Board finds that the competent opinion evidence regarding the nexus element of this appeal is at least in relative equipoise. Therefore, service connection is warranted. In consideration of the evidence of record, the Board resolves all reasonable doubt in the Veteran’s favor and awards service connection for PTSD. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. NeSmith, Associate Counsel