Citation Nr: 1808138	
Decision Date: 02/08/18    Archive Date: 02/20/18

DOCKET NO.  14-22 112	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia


THE ISSUES

1.  Entitlement to service connection for chronic fatigue syndrome.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD), depression, and insomnia.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

T. J. Anthony, Associate Counsel


INTRODUCTION

The Veteran had active service from March 2000 to March 2003 and from October 2004 to December 2012.

These matters are before the Board of Veterans' Appeals (Board) on appeal of a January 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.

In February 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the record.


FINDINGS OF FACT

1.  During the February 2017 Board hearing, the Veteran withdrew the issue of entitlement to service connection for chronic fatigue syndrome.

2.  The evidence establishes that the Veteran engaged in combat with the enemy; his claimed in-service stressors are related to that combat; and the claimed stressors are consistent with the circumstances, conditions, or hardships of the Veteran's service.

3.  The probative evidence of record demonstrates that it is at least as likely as not that the Veteran has PTSD that is caused by or otherwise etiologically related to his active service.

4.  The probative evidence of record demonstrates that it is at least as likely as not that the Veteran has depression that is caused by or otherwise etiologically related to his active service.

5.  The probative evidence of record demonstrates that the Veteran's insomnia is a symptom of his service-connected psychiatric disabilities.


CONCLUSIONS OF LAW

1.  The criteria for withdrawal of the issue of entitlement to service connection for chronic fatigue syndrome are met.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.202, 20.204 (2017).

2.  The criteria for entitlement to service connection for PTSD, depression, and insomnia have been met.  38 U.S.C. §§ 1110, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawn Issue

The Board may dismiss any appeal that does not allege specific error of fact or law in the determination being appealed.  38 U.S.C. § 7105 (2012).  A substantive appeal may be withdrawn on the record at a hearing before the Board.  38 C.F.R. §§ 20.202, 20.204(b) (2017).

At the February 2017 Board hearing, prior to promulgation of a decision in this case, the Veteran requested withdrawal of the issue of entitlement to service connection for chronic fatigue syndrome.  Accordingly, the Veteran requested withdrawal of his appeal as to that issue on the record at the Board hearing, and there remain no allegations of error of fact or law for appellate consideration with respect to that issue.  The Board consequently does not have jurisdiction to review the issue, and the issue is dismissed.


VA's Duty to Notify and Assist

VA has a duty to notify and assist veterans in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159 (2017).  In this decision, the Board grants entitlement to service connection for PTSD, depression, and insomnia.  This represents a complete grant of the benefit sought on appeal.  Thus, any deficiency in VA's compliance with the notification and assistance requirements is deemed to be harmless error, and further discussion of VA's compliance with those duties is not necessary.  See Bernard v. Brown, 4 Vet. App. 384 (1993).

Legal Criteria

Generally, service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303 (2017).  To establish service connection for a disability, the Veteran must show: (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 current disability and the disease or injury incurred in or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f).

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.  38 C.F.R. § 3.304(f)(2).

Analysis

The Veteran contends that he has PTSD, depression, and insomnia due to in-service combat-related stressors.  Specifically, he has reported that he saw fellow service members wounded and killed in action while serving as a door gunner on a black hawk helicopter.  He was also tasked with collecting the bodies of dead service members and transporting them from the battlefield.  See February 2017 Board hearing transcript; Psychological Evaluation conducted by A. Watkins, Psy.D., in February and March 2017.  The Veteran's DD Form 214 for his period of active service from October 2004 to December 2012 reflects decorations that include the Combat Action Badge and a basic aviation badge.

As to current diagnoses of PTSD and depression, Dr. Watkins's psychiatric evaluation reflects extensive diagnostic testing showing that the Veteran meets the diagnostic criteria for PTSD under the DSM-5.  She provided further discussion of how the diagnostic criteria were met for PTSD and depression in a VA Form 21-0960P-3, Review PTSD Disability Benefits Questionnaire (DBQ), dated in March 2017.  Therefore, the record includes competent evidence that the Veteran has a current diagnosis of PTSD and depression.

In that regard, the Board observes that a December 2013 VA examiner provided a psychiatric diagnosis only of unspecified anxiety and that an October 2014 VA examiner found that the Veteran does not have negative alterations in cognitions and mood associated with the traumatic in-service events, as required for a diagnosis of PTSD.  The October 2014 examiner therefore found that the Veteran did not meet the full criteria for a PTSD diagnosis.  However, the Board finds no reason to afford greater probative weight to the October 2014 VA examiner's assessment than to Dr. Watkins's conclusion that the Veteran does meet the diagnostic criteria for PTSD.  Dr. Watkins's psychiatric evaluation and DBQ indicate that the Veteran has symptoms of feelings of guild, episodic dissociative symptoms, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.  Therefore, the Board finds that the record is at least at equipoise as to whether the Veteran has a current diagnosis of PTSD.

Dr. Watkins's psychiatric evaluation and DBQ also show that the Veteran's PTSD diagnosis is based on the Veteran's reported in-service stressors.  The Veteran reported at the psychiatric evaluations that he has nightmares, flashbacks, and other such symptoms indicative of PTSD related to his service as a black hawk door gunner.  Dr. Watkins opined that those symptoms are related to the in-service stressful events.  Accordingly, the record includes competent medical evidence of a link between the current symptoms and the in-service stressor.

As to credible supporting evidence that the claimed in-service stressors occurred, given the decorations noted on the Veteran's DD Form 214, the Veteran's reports of engaging in combat with the enemy are considered credible.  Furthermore, his claimed stressor is related to that combat, and the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran's service.  Under 38 C.F.R. § 3.304(f)(2), his lay testimony alone may therefore establish the occurrence of the claimed in-service stressor.

In regard to the Veteran's depression, Dr. Watkins indicates on the DBQ that the Veteran's depression is part and parcel to his PTSD  In regard to the Veteran's insomnia, a January 2014 VA examiner opined that the condition is a symptom of the Veteran's mental health condition and not a separate diagnosis.  The Board accepts those opinions as probative evidence that the Veteran's depression is related to his PTSD and his insomnia is a symptom of his psychiatric disabilities.

In summary, the record is at least at relative equipoise as to whether the Veteran has a current diagnosis of PTSD.  The evidence establishes that the Veteran engaged in combat with the enemy; his claimed stressors are related to that combat; and the claimed stressors are consistent with the circumstances, conditions, or hardships of his service.  Therefore, his lay testimony alone may establish the occurrence of the claimed in-service stressors under the provisions of 38 C.F.R. § 3.304(f)(2).  Furthermore, the probative evidence of record demonstrates that the Veteran's depression and insomnia are related to his psychiatric disabilities, including his PTSD.  As such, the Board finds that it is at least as likely as not that the Veteran's PTSD, depression, and insomnia are related to his active service.  38 C.F.R. §§ 3.303, 3.304(f).  The benefit of the doubt is resolved in the Veteran's favor, and entitlement to service connection for PTSD, depression, and insomnia must be granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

The appeal for entitlement to service connection for chronic fatigue syndrome is dismissed.

Entitlement to service connection for PTSD, depression, and insomnia is granted.




____________________________________________
MICHAEL MARTIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs