Citation Nr: 18156252 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-51 160 DATE: December 7, 2018 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is GRANTED. FINDING OF FACT A causal relationship exists between the Veteran’s current symptomatology and his claimed in-service stressor. CONCLUSION OF LAW The criteria for entitlement to service connection for an acquired psychiatric disorder, to include PTSD have been met. 38 U.S.C. § 1110, 1154, 5107; 38 C.F.R. § 3.303; 38 C.F.R. § 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a member of the United States Army, with active duty service from August 1996 through December 1998 and from November 2006 through August 2010. This appeal comes to the Board of Veterans’ Appeals (Board) from an August 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina (hereinafter Agency of Original Jurisdiction (AOJ)). In the August 2013 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD because the evidence was not sufficient to confirm that the Veteran actually engaged in combat with the enemy. See Rating Decision dated August 2013. After reviewing the Veteran’s medical records and statements to the Board, this issue has been recharacterized as a claim for entitlement to service connection for an acquired psychiatric disorder, to include PTSD. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). As such, the issues on appeal have been recharacterized as reflected on the title page of this decision. Service Connection In seeking VA disability compensation, a claimant generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current 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, 1167 (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). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD Service connection for PTSD has unique evidentiary requirements. It generally requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. See 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). As to the first requirement, of a medical diagnosis for PTSD, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term “psychosis” to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-V). See 79 Fed. Reg. 45,094. VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308. Here, as the Veteran’s claim was certified to the Board in August 2018, the amended regulation applies. Furthermore, with regard to an actual diagnosis of PTSD, lay persons are not categorically incompetent to speak on matters of medical diagnosis or etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board must consider the type of condition specifically claimed and whether it is readily amenable to lay diagnosis or probative comment on etiology. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In this regard, the Federal Circuit recently held that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify.” Young v. McDonald, 766 F.3d 1348, 1352-53 (Fed. Cir. 2014). Regardless, the Board acknowledges the Veteran is competent to report psychiatric symptoms both during and after service. See 38 C.F.R. § 3.159 (a)(2); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); (discussing that Veteran is competent to report a contemporaneous medical diagnosis); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (discussing general competency of a Veteran to report psychiatric symptoms). That is, lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson, 581 F.3d at 1316. See also Jandreau, 492 F.3d at 1376-77. As for the second requirement, an in-service stressor, the evidence necessary to establish the occurrence of any in-service stressor varies depending upon the circumstances of the case. VA has provided for specific types of cases where lay evidence alone may be sufficient to describe the stressor and further corroborating evidence will not be required. Corroborating evidence is not required in cases where (1) PTSD is diagnosed in service; (2) the evidence establishes the Veteran engaged in combat with the enemy and the claimed stressor is related to that combat; (3) the stressor is related to the Veteran’s fear of hostile military or terrorist activity; or (4) the evidence establishes that the Veteran was a prisoner-of-war and the stressor is related to that prisoner-of-war experience. 38 C.F.R. § 3.304. In any of the above situations, the Veteran’s lay testimony or statement is accepted as conclusive evidence of the stressor’s occurrence and no further development or corroborative evidence is required providing that such testimony is found to be consistent with the circumstances, conditions, or hardships of service and there is no clear and convincing evidence to the contrary. See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. 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. VAOPGCPREC 12-99 (Oct. 18, 1999). Service in a combat zone does not establish that a veteran engaged in combat with the enemy. Id. Whether the veteran engaged in combat with the enemy is determined through the receipt of certain recognized military citations or other supportive evidence. West v. Brown, 7 Vet. App. 70 (1994). The determination of whether the requirements of service connection have been met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). In making these determinations, the Board must consider and assess the credibility and weight of all evidence in the claim file, including the medical and lay evidence, to determine its probative value. In doing so, the Board must provide its reasoning for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Barr v. Nicholson, 21 Vet. App. 303 (2007). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A claimant need only demonstrate an approximate balance of positive and negative evidence in order to prevail. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, a preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). With consideration of the above described regulations governing PTSD claims, the Board finds the evidence, when considered in a light most favorable to the Veteran, warrants a finding of entitlement to service connection for PTSD. As to the first requirement, evidence of a current diagnosis, the Board observes that the Veteran has been diagnosed with PTSD. See VA Examination dated February 2012. Specifically, during a February 2012 VA examination, the Veteran was examined and found to meet the clinical diagnosis for a PTSD disability, under the DSM-V criteria. During this encounter, the Veteran described his combat service. The Veteran stated that while deployed in Iraq, his convoy received incoming fire while he was in the truck and they returned fire. See VA Examination dated February 2012. The Veteran also reported that one of the sergeants was injured during this exchange and that he feared for his health and safety and believed that he could have been injured and had no way to protect himself. See VA Examination dated February 2012. The examiner opined that the Veteran’s mental condition was at least as likely as not related to his claimed stressor incurred during service. See VA Examination dated February 2012. In addition to these events in service, the Veteran reports current symptoms of night sweats, bad dreams, and anxiety. The Veteran described physical manifestations of his anxiety, which included avoiding anything military related, having intrusive thoughts about the claimed stressors, and an increase in alcohol and drug abuse. See VA Examination dated February 2012. The Veteran also reported suspiciousness, flattened affect, and disturbances of motivation and mood. See VA Examination dated February 2012. Based on this encounter, and a review of the Veteran’s medical records, the clinician diagnosed the Veteran with PTSD, based upon the DSM-V criteria. In regards to the second element, the Board finds the Veteran’s lay reports of his military history sufficient to establish the occurrence of an in-service stressor. As noted above, VA regulations allow lay evidence to support a Veteran’s claim of a stressor, without further corroborating evidence, where the Veteran is found to have “engaged in combat with the enemy.” See 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304. Notably, the Veteran reported that in March 2004, his convoy was hit with an Improvised Explosive Device (IED) to the front and rear of the convoy. See Lay Statement dated September 2016. The Veteran also stated that the convoy lost about three soldiers that day and five were critically injured. See Lay Statement dated September 2016. While evidence associated with the Veteran’s file shows the Veteran being stationed in Kuwait rather than Iraq, the Board affords the Veteran the benefit of the doubt and finds that his reports of being in Iraq performing convoy duties are plausible. Therefore, although the Veteran’s contended in-service stressor cannot be verified, the Board finds that it is at least as likely as not that the Veteran’s convoy was in Iraq and that he feared hostile enemy activity. Finally, with respect to the third requirement, medical evidence of a link between current symptomatology and the claimed in-service stressor, the Board finds sufficient credible evidence which establishes this nexus. Notably, during the February 2012 VA examination, the clinician found the Veteran’s current symptoms were related to his traumatic exposures during his active duty service. Once again, the Board finds the February 2012 VA examination to be probative evidence in this regard. Based on the foregoing and after resolving all doubt in the Veteran’s favor, the Board concludes that the probative medical evidence of record weighs in favor of finding that the Veteran has a current diagnosis of PTSD related to his conceded in-service stressor. Therefore, the Board finds that service connection for an acquired psychiatric disorder, to include PTSD, is warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Bristor