Citation Nr: 1806360 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-23 053 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran served on active duty from June 2001 to June 2005. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was later granted service connection for an anxiety disorder, not otherwise specified, based upon combat trauma experiences during service, in an April 2012 rating decision. However, the Veteran contends that she is currently treated for PTSD and has never been treated for just an anxiety disorder, not otherwise specified. As such, she has continued her appeal for PTSD. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. FINDING OF FACT The competent and probative evidence of record demonstrates that the Veteran has a confirmed diagnosis of PTSD that is due to her active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303, 4.25a (2017). REASONS AND BASES FOR FINDING AND CONCLUSION By way of history, the Veteran initially filed a claim for entitlement to service connection for PTSD in July 2009. The Veteran has alleged several stressors as to why she has a psychiatric disability due to service. Specifically, she has stated that she suffers from PTSD, which was brought on and progressed after (1) seeing burning tanks with people still inside while in a convoy from Kuwait to Iraq; (2) driving through a crowd and over bodies while in a convoy from Kuwait to Iraq; and (3) seeing mass devastation in Baghdad, Iraq when her convoy arrived. These stressors have been found to be consistent with the Veteran's service in Kuwait and Iraq at the beginning of the Iraq War in 2003, as confirmed by the Veteran's service personnel records and are, therefore, conceded. Service connection may be established for disability due to a disease or injury that was incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). In general, in order to prevail on the issue of service connection 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, 1167 (Fed. Cir. 2004). The Veteran was provided with a VA examination in February 2012 and the examiner diagnosed an anxiety disorder, not otherwise specified, based upon the Veteran's conceded military combat stressors, which were found to be related to the Veteran's fear of hostile military or terrorist activity, under the American Psychiatric Association 's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) standards. In April 2012, the RO granted entitlement to service connection for an anxiety disorder, not otherwise specified. The Veteran subsequently continued her appeal, contending that her appropriate service-connected diagnosis should be reflected as PTSD, for which she has actually been diagnosed and treated throughout the appeals period. The Board finds, in spite of the results of the February 2012 VA examination, that the RO actually had enough required medical information in its possession at the time to fully grant the Veteran's PTSD claim without the use of such VA examination. Service connection for PTSD requires: (1) medical evidence establishing a diagnosis of the disorder; (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) a link established by medical evidence, between current symptoms and an in-service stressor. 38 C.F.R. § 3.304 (f) (2017). The PTSD diagnosis must be made in accordance with the criteria of DSM. 38 C.F.R. § 4.125 (a) (2017). VA regulation 38 C.F.R. § 4.125a, which pertains to the diagnosis of a mental disorder, was amended effective August 4, 2014, to update DSM references from the DSM-IV to the more-recently published DSM-5. See Schedule for Rating Disabilities-Mental Disorders and Definition of Psychosis for Certain VA Purposes, 79 Fed. Reg. 45,093 (Aug. 4, 2014). Specifically, this regulation states that the diagnosis of a mental disorder must confirm to certain DSM criteria. Id. Although the regulation was updated during the pendency of the appeal, the Veteran's claim was certified to the Board in August 2012 and the DSM-IV remains controlling for this appeal, pursuant to the effective date of the updated regulation. See id. (codified at 38 C.F.R. § 4.125a (2017)) (providing that "[t]he provisions of this interim final rule shall apply to all applications for benefits that are received by VA or that are pending before the agency of original jurisdiction on or after the effective date of this interim final rule."). In this regard, the record contained a July 2010 record from the Veteran's VA mental health services provider showing a diagnosis of PTSD based upon the Veteran's conceded stressors, in accordance with the DSM-IV criteria, thus the aforementioned criteria were already met prior to the arrangement of the February 2012 VA examination. The July 2010 treatment record took into account the Veteran's claimed Kuwait and Iraq service combat stressors. In so doing, the treatment provider explicitly utilized the criteria of the DSM-IV, applying each criterion to the Veteran's symptoms. Criterion A was deemed met, as the Veteran described stressors which exposed her to traumatic events of attacks and witnessing mass devastation during her tour in Kuwait and Iraq. Criterion B was deemed met, as the Veteran was shown to have chronic re-experiencing phenomena by way of nightmares and recurrent thoughts about Iraq. Criterion C was deemed met, as the Veteran was shown to have chronic avoidance behaviors related to her experiences by way of avoiding talking, avoiding triggers, and feeling distanced from people. Criterion D was deemed met, as the Veteran was shown to have chronic arousal behaviors by way of problems with sleep, exaggerated startle response, and irritability. Criterion E was deemed met, as the Veteran had been experiencing these symptoms for more than one month. Criterion F was deemed met, as the Veteran, in discussing the effects of her symptoms, was shown to have clinically significant distress or impairment in social, occupational, or other important or areas of functioning, as she was having difficulty with maintaining her job and undertaking family caretaking responsibilities. In contrast, the February 2012 VA examination found that the Veteran met the above criteria with the same symptoms for all levels except for Criterion C. It was noted that the Veteran did not experience any chronic avoidance behaviors, despite the fact that the Veteran had previously been found to experience these and has since been treated for those behaviors. Therefore, it appears that the February 2012 VA examiner did not have a complete picture of the Veteran's symptom profile, as there is no discussion of the discrepancy in the Veteran's symptoms on the date of that examination and whether they actually represented an amelioration of the Veteran's disability or incomplete interview information from the Veteran. Nonetheless, in finding the February 2012 VA examination at least in equipoise with the VA outpatient findings, the Board shall resolve all reasonable doubt in the Veteran's favor. Notwithstanding the RO's grant of service connection for a similar psychiatric diagnosis based on similar facts, the criteria for an award of service connection for PTSD have been met. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs