Citation Nr: 1808687 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 04-12 127 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Richard Salmon, Attorney ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from June 1962 to September 1966. He also had a period active reserve service in 1982. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2003 rating decision of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA). The case was remanded in August 2005, August 2009, and June 2016 for additional development and has now been returned to the Board for further appellate review. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Legacy Content Manager (Virtual VA) paperless claims file associated with the Veteran's claim. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the Veteran experienced fear of hostile military activity with fear of serious bodily injury or death while serving in countries other than Vietnam, to include Taiwan, the Philippines, and Japan. 2. The evidence is at least evenly balanced as to whether the Veteran's PTSD is causally related to an in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the favor of the Veteran, PTSD was incurred in service. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2012). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him/her what evidence will be obtained by whom. 38 U.S.C. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c) (2017). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. Service Connection - In General 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 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection, a veteran 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). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Evidence generated prior to the claim must also be considered in determining a current disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). This case was certified to the Board prior to August 4, 2014, and any current psychiatric diagnosis must be in accordance with the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 4.125(a) (2014). Effective August 4, 2014, VA issued an interim rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to, among other things, remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45,093 (Aug. 4, 2014); see also 38 C.F.R. § 4.125(a) (2017). Service connection for certain chronic diseases, such as psychosis, may also be established based upon a legal "presumption" by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a) (2017). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (rejecting the argument that continuity of symptomatology in § 3.303(b) has any role other than to afford an alternative route to service connection for specific chronic diseases). In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2017). The United States Court of Appeals for the Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Although a claimant is competent in certain situations to identify a simple condition, a lay person is generally not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007); see also Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Layno v. Brown, 6 Vet. App. 465, 469 (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")). In relevant part, 38 U.S.C. 1154(a) (2012) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (2012). PTSD In addition to the laws and regulations noted above, supplementary regulations govern PTSD claims. Service connection for PTSD requires: (1) a medical diagnosis of PTSD utilizing, in this case, DSM-IV criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304(f) (2017); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). If a stressor claimed by a veteran is related to that 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 a veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3) (2017). "[F]ear 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. See id. Analysis As noted above, the Veteran's claim for service connection for an acquired psychiatric disorder, to include PTSD, was remanded on three occasions - August 2005, August 2009, and June 2016. The evidence reported in those remands is incorporated into the current decision whether specifically discussed below or not. Review of these remands reflects a common theme - the Board's attempt to corroborate the Veteran's averred inservice stressors and to obtain medical opinion as to whether any diagnosed mental health disorder, to include PTSD if demonstrated, was the result of military service. As a result of the most recent VA remand, additional VA mental health examination was conducted in June 2017. The examiner noted that the claims file was reviewed and an in-person examination was conducted. Symptoms included anxiety, suspiciousness, sleep impairment, and inability to establish and maintain effective relationships. The Veteran also exhibited hypervigilance, avoidance of reminders of service time, and guilt about not reporting seeing two babies in the Philippines that were with a dead woman. He continued to think about the dead people that he saw. Upon examination, the Veteran revealed a nervous mood with appropriate affect. There was no evidence of psychosis or mania. His speech was normal, and his thought processes were goal directed and circumstantial. His insight and judgment were fair. The examiner summarized the Veteran's averred inservice stressors, to include his fear of bodily harm or death due to the enemy and his exposure to dead bodies. She diagnosed PTSD and concluded that all mental health symptoms were attributable to that disorder. She expressly stated that the condition was at least as likely as not (50% or greater probability) incurred in or caused by military service from 1962 to 1966. She also noted that the record included numerous lay statements that supported his claim. Moreover, his reports of inservice trauma exposure and his symptoms supported a diagnosis of PTSD. Review of the record reflects that the Veteran's averred inservice stressors have remained consistent throughout his long-standing claim. While specific verification has not been accomplished, the Board recognizes that such stressors are highly difficult to verify per the circumstances of this case. It is concluded that the Veteran's accounts are not inherently implausible or ruled out by his confirmed duty stations from 1962 and 1966 (as specifically referenced in the 2005 remand). Resolving reasonable doubt in the Veteran's favor, a military stressor due to fear of hostile terrorist activity is conceded. 38 C.F.R. § 3.304(f)(3) (2017). Th issue remains whether there is a current mental health disorder due to either of these in-service stressors. As indicated in previous remand decisions, the Veteran has a complicated mental health disability picture with varying diagnoses. At the most recent examination in 2017, the VA examiner specifically noted that PTSD was demonstrated and that all current mental health symptoms were attributable to such. Moreover, she opined that his reports of trauma exposure and his symptoms supported the PTSD diagnosis. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran currently has PTSD and whether it is related to the conceded in-service fear of hostile military activity stressor. As any reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for PTSD as attributable to the in-service stressors he incurred in military service is granted. 38 U.S.C. §§ 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for PTSD is granted. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs