Citation Nr: 1808525 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-34 420 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Gillian A. Flynn, Associate Counsel INTRODUCTION The Veteran had active service from November 2001 to May 2002 and September 2003 to April 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011, rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in June 2016. A transcript of that hearing is of record. FINDING OF FACT It is at least as likely as not that the Veteran has PTSD as a result of events during service and a fear of hostile military or terrorist activity during service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304(f), 4.130 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that he has a psychiatric disability, to include PTSD and depression, as a result of a number in-service stressors. The Board has thoroughly reviewed all the evidence in the claims file. The Board has an obligation provide reasons and bases supporting a decision. However, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence of record and on what the evidence shows, or does not show, on the claims. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not given to each piece of evidence contained in the record. Every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has a duty to notify a Veteran of the information and evidence necessary to substantiate a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). VA also has a duty to assist Veterans in the development of claims. 38 U.S.C. §§ 5103, 5103A (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will to provide; and (3) that the claimant is expected to provide. The notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice should include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Correspondence dated March 2011 provided all necessary notification to the Veteran. VA has done everything reasonably possible to assist the Veteran with respect to the claims for benefits. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). The service medical records have been associated with the claims file. All identified and available treatment records have been secured, which includes VA examinations and VA health records. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c)(4), 3.326(a) (2017); McLendon v. Nicholson, 20 Vet. App. 79 (2006). An adequate examination must consider the issue at hand and provide sufficient analysis for the Board to weigh that examination against others. Stefl v. Nicholson, 21 Vet. App. 120 (2007). However, there is no reasons or bases requirement imposed on examiners. Acevedo v. Shinseki, 25 Vet. App. 286 (2012). Rather, a medical opinion is adequate when it is based on consideration of a Veteran's prior medical history and examinations, and the final report describes the disability in sufficient detail so that the Board's evaluation of the claimed disability will be a fully informed one. Ardison v. Brown, 6 Vet. App. 405 (1994); Green v. Derwinski, 1 Vet. App. 121 (1991). Concerning the issue of entitlement to service connection for a psychiatric disability, the Board finds that the medical examination reports of July 2010, April 2011, April 2013, and May 2017 are adequate. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board is satisfied that all relevant facts have been adequately developed to the extent possible and that no further assistance is required to comply with the duty to assist. Accordingly, the Board will proceed with a decision. Service Connection 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 (2012); 38 C.F.R. § 3.303(a) (2017). In addition, disabilities diagnosed after separation from service may also be service-connected if all the evidence, including pertinent service records, establishes the disability was incurred in service. 38 C.F.R. § 3.303(d) (2017); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Service connection requires competent evidence showing: (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. Holton v. Shinseki, 557 F.3d 1363 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). VA is to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a) (2012). Medical evidence is not always or categorically required in every instance to establish a medical diagnosis or the required nexus between the claimed disability and service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2017). Lay testimony is competent when it regards the readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). For appeals initially certified to the Board prior to August 4, 2014, as here, establishing service connection for psychiatric disorders, including PTSD and depression, requires medical evidence diagnosing the condition under the Diagnostic and Statistical Manual for Mental Disorder, Fourth Edition (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor event; and credible supporting evidence that the claimed in-service stressor event occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2017). Effective July 13, 2010, the regulations governing PTSD claims eliminate the requirement for corroborating that the claimed in-service stressor occurred if a stressor claimed by a Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service. 38 C.F.R. § 3.304(f)(3) (2017). Fear of hostile military or terrorist activity means that a Veteran experienced, witnessed, or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from an actual or potential improvised explosive device; vehicle-imbedded explosive device; incoming artillery, rocket, or mortar fire; grenade; small arms fire, including suspected sniper fire; or attack upon friendly military aircraft, and the Veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness or horror. 38 C.F.R. § 3.304(f)(3) (2017). The Veteran asserts that he has a psychiatric disability, to include PTSD and depression, as a result of a number in-service stressors. The Board finds that the evidence is at least in equipoise as to whether the Veteran meets the diagnostic criteria for a diagnosis of PTSD based on hostile military or terrorist activity. At a July 2010 mental health examination, the Veteran only complained of a sleep disorder and denied any other sort of mental health problem. According to the examiner, the Veteran became extremely guarded when the examiner tried to discuss mental health issues. The Veteran specifically denied he had depression, PTSD, psychosis, or mania. He also denied suicidal or homicidal ideations. He denied the use of drugs or alcohol. In addition, the Veteran did not describe any in-service traumatic events other than being upset about being medically discharged. The examiner instead found clear indications of social maladjustment related to longstanding personality traits which appeared unrelated to the claimed insomnia. The examiner noted that the Veteran was able to perform normal daily activities. The Veteran showed poor social skills, and his affect was irritable. However, the Veteran's thought process was logical, coherent, and relevant. In addition, he was well-oriented as to time, person, place, and situation. Reasoning and judgment were fair. Concentration, short-term memory, and long-term memory were normal. The examiner opined that there was the possibility of negative personality traits unrelated to insomnia, including antisocial schizoid and passive/aggressive traits. The Veteran's global assessment of functioning score was 75, such that if symptoms were present, they were transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument); with no more than slight impairment in social, occupational or school functioning (e.g., temporarily failing behind in schoolwork). The examiner determined that a diagnosis for a psychiatric disability, to include PTSD or depression, was not warranted. A February 2011 VA report by a VA psychiatrist diagnosed adjustment disorder, depressive disorder, and mild PTSD and stated that the Veteran met the DSM-IV criteria for PTSD. The examiner noted stressor in service of working as a medical logistics officer and saw fellow servicemen returned in body bags. According to an April 2011 examination report, the examiner did not find that the Veteran met the criteria for a diagnosis of any psychiatric disorder, to include PTSD and depression. In an April 2013 PTSD examination report, the examiner determined that the Veteran did not have a diagnosis of PTSD or depression under DSM-IV. The examiner found instead that the Veteran had a mood disorder not otherwise specified and a personality disorder. The examiner found a clear indication of social maladjustment and longstanding personality traits. The Veteran's denial of a family history of mental health problems was inconsistent with an earlier statement that his father was alcoholic and had tried to commit suicide twice. The Veteran denied having panic attacks, delusions, or mania. The examiner found that the Veteran had paranoia. The results of a personality assessment inventory revealed that the Veteran's response style suggested that he was likely to portray himself in a more negative or pathological manner than his actual state of mind. The examiner also concluded that the stressors reported by the Veteran were not consistent with criterion A-1/A-2 for PTSD. The Veteran was not present when the stressors occurred and the stressors were not the result of fear of hostile military or terror threat. Although the Veteran added an additional stressor asserting that a truck blew up coming through a gate at the base, he did not report experiencing significant shock, horror, helplessness, or intense fear, re-experiencing, or avoidance. The examiner also found that the Veteran did not appear to be completely forthcoming during the evaluation. The examiner opined that the current clinical profile was most consistent with a mood disorder not otherwise specified and a personality disorder. A PSTD screen was performed and was negative. In a May 2017 VA examination report, the examiner found that the Veteran did not have a diagnosis of PTSD due to any in-service incident. Rather, the examiner opined that the Veteran had an unspecified personality disorder traced to adolescence. The Veteran's performance on the credibility assessment test was above the established cutoff, which indicated that his performance was not consistent with symptoms of PTSD. The examiner suspected that the Veteran was exaggerating his symptoms and attempting to portray himself as worse off than he actually was. The Veteran provided an October 2013 one page note from Dr. Samuel Mathai, M.D., who stated that the Veteran had a diagnosis of PTSD related to a stressful event in Iraq where he was responsible for placing female private who had irritated him on a day when he was in a bad mood on a special mission outside the base and she was killed as a result. The doctor also noted that one of the Veteran's friends was killed. The doctor opined that the Veteran had experienced symptoms of PTSD including nightmares, startle reactions, avoidance of reminders, irritability, that appeared to be increasing with time and were currently more prominent. Other records from Dr. Mathai indicate that the Veteran met the DSM criteria for PTSD. Those notes also indicate that the Veteran was not forthcoming to treating personnel as a coping mechanism. The Social Security Administration (SSA) found that the Veteran has anxiety disorder and affective disorder. The SSA report noted that the Veteran had a negative PTSD screening and that he had not described any traumatic in-service events. The Veteran provided testimony at a June 2016 hearing regarding his service experiences and claimed stressors. Having evaluated the evidence, the Board finds that the evidence is in equipoise as to whether a diagnosis of PTSD due to service experiences and a fear of hostile military or terrorist activity during service. While the examinations in April 2013 and May 2017 found that a diagnosis of PTSD was not warranted, Dr. Mathai found that a diagnosis was warranted pursuant to DSM due to service experiences and fear during service. Furthermore, Dr. Mathai's records note that the Veteran was not forthcoming to treating personnel as a defense mechanism. The May 2017 report found that the Veteran's stressor was not adequate. However, Dr. Mathai found the claimed stressors were adequate. The Board will resolve reasonable doubt in favor of the Veteran and find that a diagnosis of PTSD is warranted due to events during service and a fear of hostile military or terrorist activity. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted. 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs