Citation Nr: 18155567 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-29 369 DATE: December 4, 2018 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence at least in equipoise as to whether the Veteran’s PTSD is related to combat service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty from December 1957 to July 1980. The Veteran’s PTSD claim was originally denied in an October 2015 rating decision. The Veteran filed a notice of disagreement in November 2015 and a statement of the case (SOC) was issued in April 2016. In his June 2016 VA Form 9, the Veteran requested a videoconference hearing. The claim was certified to the Board. In a September 2016 correspondence, the Veteran reported that he would like to revoke his current appeal regarding PTSD and reopen it as a new claim. An October 2016 correspondence indicates the RO treated the Veteran’s September 2016 correspondence as a request to reconsider his PTSD claim. In a January 2017 rating decision, the RO continued the denial of the Veteran’s PTSD claim. The Veteran did not submit an additional NOD in response, but in a May 2017 correspondence, the Veteran requested to reopen his PTSD claim and submitted additional evidence in support of his claim. The Veteran has not been afforded a Board hearing as requested. In addition, the Veteran has not waived RO consideration of newly submitted evidence. However, as the decision is a grant of the benefit sought, any due process error is not prejudicial. 1. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) and depressive disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To establish service connection for a disability, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also 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). To establish entitlement to service connection for PTSD, there must be: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between the current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). 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 the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). The ordinary meaning of the phrase “engaged in combat with the enemy,” as used in 38 U.S.C. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. The issue of whether any particular set of circumstances constitutes engagement in combat with the enemy for purposes of section 1154(b) must be resolved on a case-by-case basis. See VAOPGCPREC 12-99. Additionally, for a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for psychoses if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a), 3.309(a). Regarding stressors, the Veteran reported combat-related experiences including the death of a subordinate service member who stepped on a mine. Service personnel records reflect the Veteran received a combat action medal and a Vietnam Cross of Gallantry among several other decorations. As the evidence establishes that the Veteran engaged in combat with the enemy during service, the Veteran’s accounts of in-service stressor events during combat are presumed credible and consistent with the type and circumstances of his service. The evidence is conflicting as to whether the Veteran has a diagnosis of PTSD during the appeal period. The September 2015 and January 2017 VA examination reports indicate that the Veteran did meet the criteria for PTSD. However, the Veteran’s VA treatment records and private treatment records show a diagnosis of PTSD. The Board resolves reasonable doubt in the Veteran’s favor and finds that the Veteran had a diagnosis of PTSD during the appeal period. The issue that remains disputed is whether the Veteran’s PTSD is related to combat service. The Veteran was afforded a VA examination in September 2015. The examiner indicated that the Veteran did not meet the criteria for PTSD but had a diagnosis of depressive disorder, NOS. Regarding stressors, the Veteran reported “I am over that, I don’t think about it.” The only mental health symptom noted was depressed mood. The examiner noted that the Veteran may have a slight credibility issue. Specifically, the examiner noted that the Veteran’s memory may not be functioning properly. His records indicate that he knew about his son’s existence back in 1980 as he signed a document in his military records indicating that his son was not living with him while during the interview, he indicated that he just met his son 2 years ago. He also stated that he was not taking any medication for emotional issues however, he left his bag of medication in the waiting area after he left. He had been prescribed Bupropion for depression. The examiner noted that based on the examination, the Veteran needs to seek follow up treatment as he requires continued medication for depression and could possibly benefit from counseling. The examiner did not issue an opinion as to whether the Veteran’s depressive disorder was related to combat service. In a June 2016 letter, Dr. S.K. indicated that she met with the Veteran in June 2016 and that during the evaluation the Veteran met the full criteria for PTSD in accordance with the DSM-5. Similarly, in a July 2016 letter, Drs. S.K. and G.P. indicated that the results of a Montreal Cognitive Assessment suggest the Veteran had a mild cognitive decline but that a diagnosis of dementia is not warranted. Most specifically, the doctors indicated that while the Veteran’s language is good, executive functions and attention are poor to fair. His memory was also poor. His visuospatial perception is poor which may have implications for driving. The Veteran also continued to have a diagnosis of PTSD. A July 2016 VA treatment note indicates the Veteran complained of difficulty dealing with memories from Vietnam. He reported experiencing symptoms for the last several years but experienced worsening symptoms since his wife died two years earlier. The Veteran’s caretaker indicated that he was more moody and irritable. He reported nightmares and hypervigilance. The Veteran showed a diagnosis of PTSD. The Veteran was afforded an additional VA psychological evaluation in January 2017. The Veteran did not meet the criteria for PTSD but showed diagnoses of dementia and major depression. The examiner noted that it was not possible to make a diagnosis given the Veteran’s severe dementia. The examiner noted that as such, the September 2015 VA examination may be more accurate although the examiner questioned the Veteran’s memory during the examination. Regarding stressors, the Veteran reported that he told a troop not to go into an area that was mined and the person went into the area while the Veteran was on leave. He reported another incident when mortars were being fired. He reported he felt fear but had no current remembrance. He reported that after he left Vietnam, he experienced symptoms of PTSD but, “it does not bother [him] anymore.” The only mental health symptoms shown was impairment of short and long-term memory and disorientation to time and place. The examiner noted that the Veteran had a diagnosis of dementia and was an unreliable historian. He was accompanied to the examination with his caregiver. The examiner noted that the Veteran denied symptoms of PTSD however his caregiver stated that he cries about men that were killed in Vietnam and feels guilty and responsible. The examiner opined that the Veteran does not meet the criteria for PTSD therefore the claimed condition is less likely as not the result of combat service in Vietnam. The examiner further noted that the Veteran had current diagnoses of dementia and major depression and according to the examination, the Veteran did not endorse having a nexus to the experiences during service. Therefore, the current diagnosis of dementia is less likely than not a result of service. Notably, the examiner did not explicitly address whether the current diagnosis of major depression was a result of service. The Veteran was afforded an additional VA examination in June 2017. The Veteran showed diagnoses of PTSD and unspecified dementia with behavioral disturbance. The Veteran reported that his PTSD got worse 4 years ago when his wife died. The examiner noted that the Veteran was unable to track and answer questions during the interview. Thus, it was very difficult to diagnose accurately from his reports. The examiner noted that the Veteran’s dementia started recently and that his PTSD existed before the onset of his dementia but is still active. The examiner opined that the Veteran’s PTSD was at least as likely as not related to service. The examiner reasoned that the Veteran’s PTSD is solely characteristic of nightmares, flashbacks, recurring thoughts and intense reactions to reminders of past traumas, avoidance symptoms, irritability and angry outbursts, reckless behavior, hypervigilance, and exaggerated startle responses, concentration problems, insomnia, loss of interests or pleasures, persistent negative emotional states, tendency to illogically blame self for trauma, and feelings of detachment from others. The examiner further noted that the Veteran has developed dementia, which is a broad category of brain disease that cause long term and often gradual decrease in the ability to thing and remember that is great enough to affect a person’s daily functioning. Other symptoms include emotional problems, language trouble, and a decrease in motivation. These two diagnoses can be co-morbid but it is not common. As far as their relationship, dementia is most often related to an organic cause such as old age and PTSD is caused by traumatic experiences. They have nothing to do with each other. PTSD came first and it has not been known to make dementia more likely. The examiner further noted that the Veteran’s DD 214 does not show specific instances of trauma but does substantiate the Veteran’s service. The Veteran reports that he suffers from symptoms that add up to PTSD. The diagnosis requires trauma of the type the Veteran reports experiencing during service. The symptoms seem to have begun after the time of the traumatic events he reports, as they were not present before service. The examiner further noted that, “The psych diagnoses are logically and temporally connected to the Veteran’s reported experiences in service. Therefore, short of any evidence to the contrary, we have to believe the picture presented by the claimant that his reported psych symptoms are valid and that the experiences that cause them were in service.” In reviewing the totality of the record evidence, the Board determines that with the resolution of all reasonable doubt in favor of the Veteran, service connection for PTSD is warranted. The Board finds the June 2017 VA examination most probative to the question at hand. The September 2015 and January 2017 VA examiners both found that the Veteran did not meet the criteria for PTSD but failed to address the VA and private treatment records showing a diagnosis of PTSD. The Board finds the June 2017 VA medical opinion adequate and highly probative to the question at hand. The examiner possessed the necessary education, training, and expertise to provide the requested opinion. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In addition, the VA examiner provided an adequate rationale for the opinion. The opinion considered an accurate history, was definitive and supported by a detailed rationale that considered the lay and medical evidence. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). (Continued on the next page)   In sum, service connection for PTSD is granted. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel