Citation Nr: 18151379 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 14-28 837 DATE: November 19, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The Veteran’s current PTSD is related to his in-service combat stressors. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1154(b), 5107 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from March 1967 to June 1970, including service in the Republic of Vietnam. His awards and decorations include the Combat Action Ribbon. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2011 and October 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery Alabama, which, inter alia, denied service connection for PTSD and entitlement to TDIU. This matter was previously before the Board in November 2016. At that time, the Board remanded the matter for additional evidentiary development. Entitlement to service connection for PTSD is granted. The Veteran contends that he has PTSD as a result of his combat experiences in Vietnam. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that which is pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); 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). The evidence required to support the occurrence of an in-service stressor varies depending on whether a veteran was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran’s service, then his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran.” See Gilbert, 1 Vet. App. at 54. For the reasons that follow, the Board finds that entitlement to service connection for PTSD is warranted. The Board first notes that the Veteran reports that his in-service stressors are related to his combat in Vietnam. The Veteran’s service personnel records confirm that he served in the Republic of Vietnam and that he was awarded the Combat Action Ribbon. Absent evidence to the contrary, the Board finds that his reported stressors are consistent with the circumstances, conditions, or hardships of his Vietnam service; thus, his lay testimony alone is sufficient to establish the occurrence of the claimed in-service stressor. With respect to the other elements necessary to establish an award of service connection, the Board notes that the post-service medical record documents a lengthy history of mental health and substance abuse issues, including a diagnosis of PTSD. See progress notes 2004-2005 and VA medical records 2004-2012. In a May 2008 VA examination, the examiner determined that the Veteran did not have PTSD and opined that his psychiatric symptoms were more consistent with a diagnosis of substance-induced mood disorder. The examiner noted that the Veteran did not have significant intrusive thoughts about his experiences in Vietnam. Similarly, in a September 2011 VA examination, the examiner also determined that the Veteran did not have PTSD and noted that his symptoms were consistent with diagnoses of polysubstance dependence, alcohol dependence, and substance induced mood disorder with depressive features. In September 2018, the Veteran underwent a private examination. The examiner noted the Veteran’s reports of constantly feeling afraid and in danger while he was in Vietnam. The Veteran reported witnessing significant violence, including dead and wounded American and Vietnamese soldiers. Additionally, the Veteran seemed “especially haunted” witnessing US troops kill innocent civilians. The Veteran also reported being deployed in the field with a helicopter unit and digging holes for shelter around landing zones. He stated that their helicopters attracted attention from the enemy, which typically resulted in mortar, rocket, and artillery fire. After review of the claims file, which included a previous PTSD diagnosis, and examination of the Veteran, the examiner determined that the Veteran suffered from chronic PTSD due to Vietnam trauma. He found that the Veteran’s PTSD was at least as likely as not caused by the Veteran’s reported in-service stressors and opined that it was more likely than not that the Veteran had suffered from PTSD and depression since service. The examiner also opined that the Veteran’s PTSD had worsened over the years. In addressing the first element of a service connection claim, the Board finds that the Veteran has a current diagnosis of PTSD in accordance with section 4.125. As noted previously, the Veteran’s VA outpatient treatment records include a diagnosis of PTSD. More to the point, the September 2018 private examination report referenced above reflects that the diagnosis of PTSD was rendered in accordance with the applicable diagnostic criteria for PTSD. Although the Board notes negative VA examinations from May 2008 and September 2011, which found no PTSD diagnosis, the Board finds these examinations to be incomplete and not particularly probative as they did not consider the Veteran’s prior PTSD diagnosis, nor did they include a clear basis for the conclusion that the Veteran did not meet the diagnostic criteria for PTSD. For example, the the May 2008 examination failed to provide a rationale as to why the Veteran’s reported in-service stressors did not meet the criteria for a diagnosis of PTSD. The September 2011 VA examiner indicated that the Veteran’s reported stressor, i.e. seeing others injured or killed in combat operations, was not adequate to support the diagnosis of PTSD, nor did it relate to the Veteran’s fear of hostile military activity. The examiner further indicated that the Veteran had not been exposed to a traumatic event. Given the Veteran’s combat history and reported combat stressors, these conclusions are obviously inconsistent with the applicable legal and medical criteria for PTSD, rendering the examination report of little probative value. The Board has therefore assigned the September 2018 private examination greater probative weight, as the examiner reviewed the entirety of the Veteran’s claims file, including a previous PTSD diagnosis, considered the Veteran’s reports of in-service stressors, and provided a clear rationale. In this regard, the Board finds that the positive evidence outweighs the negative evidence, and therefore, the Board finds that the Veteran has a current PTSD diagnosis. With regard to the second element, as previously noted, the Veteran was the recipient of the Combat Action Ribbon for his service in Vietnam. Thus, it is conceded that the Veteran engaged in combat with the enemy. 38 U.S.C. § 1154(b). Additionally, the Veteran’s claimed in-service stressors, as detailed previously, are consistent with the circumstances of a combat servicemember during the Vietnam War, and therefore the Veteran’s lay testimony alone is sufficient to establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). In addressing the third element, the nexus requirement, the Board finds that the Veteran’s PTSD is causally related to the in-service stressors experienced by the Veteran. As noted previously, the Board has assigned little probative weight to the May 2008 and September 2011 VA examinations for the reasons discussed above. The Board finds the September 2018 private examination to be of greater probative weight as the examiner elicited a detailed history from the Veteran, and after noting multiple stressors reported by the Veteran, determined that the Veteran’s symptoms were related to the claimed stressors. Furthermore, the examiner provided a reasoned conclusion and supporting rationale for his determination that the Veteran’s PTSD was causally related to the Veteran’s in-service stressors. Accordingly, the Board has weighed the probative evidence of record and finds that the evidence is at least in relative equipoise as to the Veteran’s diagnosis of PTSD and the causal relation between the Veteran’s symptoms and his in-service stressors. The benefit-of-the-doubt rule is therefore for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2017). The Board will resolve the reasonable doubt in the Veteran’s favor and find that the evidence supports the grant of service connection for PTSD. See 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. The Veteran seeks entitlement to a total disability rating based upon individual unemployability (TDIU). He claims that he is unable to work as a result of his service-connected disabilities, particularly PTSD. Prior to the grant of service connection for PTSD in the instant decision, the Veteran was service-connected for tinnitus rated at 10 percent and for bilateral hearing loss rated as zero percent disabling. The Veteran therefore did not meet the schedular requirements for TDIU for his service-connected disabilities. 38 C.F.R. § 4.16(a). Although the Veteran now has service connection for PTSD, the Board does not assign a disability rating or effective date in the first instance; rather, the grant of service connection is a full grant of the benefits sought on appeal. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (holding that a separate notice of disagreement must be filed to initiate appellate review of “downstream” elements such as the disability rating or effective date assigned). Therefore, the Board finds the issue of eligibility to TDIU to be inextricably intertwined with the issue of the Veteran’s initial rating for his service-connected PTSD. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). Therefore, this claim must be remanded. The matter is REMANDED for the following action: After the assignment of an initial rating for service-connected PTSD, readjudicate the inextricably intertwined issue of entitlement to TDIU. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel