Citation Nr: 1809022 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 11-06 032 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Robert V. Chisholm, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and R.S., a licensed clinical social worker ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran served on active duty from December 1971 to April 1975. This appeal is before the Board of Veterans' Appeals (Board) from an April 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Veteran initially filed a claim for service connection for a mental health condition, specifically PTSD. However, in Clemons v. Shinseki, 23 Vet. App. 1,5 (2009), the United States Court of Appeals for Veterans Claims (Court) clarified how the Board should analyze claims for PTSD and other acquired psychiatric disabilities. As emphasized in Clemons, a veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. In August 2014, the Board remanded this case for a Board hearing. The Veteran and R.S., a licensed clinical social worker, testified before the undersigned Veterans Law Judge (VLJ) at a September 2014 videoconference hearing. As such, the Agency of Original Jurisdiction (AOJ) complied with the August 2014 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). A transcript of this hearing is of record. In a March 2016 decision, the Board denied the Veteran's claim for service connection for a psychiatric disability, to include PTSD. In a May 2017 Memorandum Decision, the Court vacated the Board's March 2016 decision and remanded this case to the Board for readjudication. FINDINGS OF FACT 1. The Veteran has a current psychiatric disability of PTSD. 2. An in-service stressor sufficient to cause PTSD is corroborated by evidence of record. 3. The current PTSD is related to an in-service stressor. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Because the Veteran's claim is being granted in full, VA's duties to notify and assist are deemed fully satisfied and there is no prejudice to the Veteran in proceeding to decide the issue on appeal. See 38 U.S.C. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.156, 3.159. Service Connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection requires: (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); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) (recently amended as the DSM-V)); (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. 38 C.F.R. § 3.304(f). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. The Veteran seeks service connection for PTSD. He contends that his PTSD is related to in-service stressors. The record reflects that the Veteran has a current psychiatric disability of PTSD. For the reasons discussed below, the Board finds that the evidence is in relative equipoise that the current PTSD is related to an in-service stressor. Military personnel records reveal that the Veteran was administratively discharged by reason of unsuitability for character and behavior disorders. An April 1975 memorandum recommending administrative discharge noted that a Navy doctor had verbally indicated that the Veteran was suffering from character and behavior disorders, specifically immature personality. See March 1975 military personnel record. Service treatment records reflect a history of nervousness, heavy drug abuse, and a report of constant anxiety. See, e.g., June 1972 and February 1975 service treatment records. The service separation examination shows a normal psychiatric evaluation, and the concurrent report of medical history shows that the Veteran denied depression or excessive worry, loss of memory or amnesia, nervous trouble of any sort, and treatment for any mental condition. The Veteran has claimed two stressors to support his PTSD claim. First, in his December 2006 Statement in Support of Claim for PTSD, he claimed that he was sent to Vietnam, and assigned to special duties. However, his service personnel records, including his DD Form 214, do not support this stressor. Second, the Veteran claimed that around 1971 or 1972, he was involved in war exercises off the coast of Norway while stationed on the U.S.S. Inchon, during which time a helicopter with five crewmen crashed into the side of a mountain and the Veteran had to collect the body parts into body bags. See October 2014 Board Hearing Transcript. The Veteran's military personnel records reflect that he participated in NATO Operation Strong Express, which occurred in the waters of Norway. Deployment records for the U.S.S. Inchon document that the ship participated in Operation Strong Express from August 1972 to October 1972. The Veteran also submitted an Arlington National Cemetery document pertaining to R.R., who died in a helicopter crash in Norway while participating in NATO Operation Strong Express. The Board finds that the second stressor is consistent with the circumstances and conditions of the Veteran's service. See 38 C.F.R. § 3.304(f)(1). As such, the Board finds that an in-service stressor sufficient to cause PTSD is corroborated by the evidence of record. The Board next finds that the evidence is in relative equipoise as whether the current PTSD is related to the in-service stressor discussed above. The Veteran's representative submitted an August 2017 statement by C.M., a psychologist, who opined that it is at least as likely as not that the Veteran's PTSD developed as a result of an in-service traumatic stressor, specifically when he participated in a clean-up operation following a helicopter accident. In reaching this opinion, C.M. provided a thorough review of the Veteran's military and psychiatric history, including documented change in behavior and attitude, as well as reports of anxiety, nervousness, and heavy drug abuse during service. It was explained that it is at least as likely as not that the Veteran's PTSD was present in prodromal form prior to his service separation as evidenced by his documented change in behavior, anxiety, and subsequent administrative discharge by reason of unsuitability of character. The Board finds that the August 2017 private opinion is highly probative with respect to service connection for PTSD, and is adequately based on objective findings as shown by the record, and accordingly, the Board concludes that the medical opinion rendered was based upon a full and accurate factual premise, including the Veteran's history, and provided a rationale for the opinion given. See Stegall, 11 Vet. App. 268; Barr v. Nicholson, 21 Vet. App. 303 (2007); Jones v. Shinseki, 23 Vet. App. 382 (2010); Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). Therefore, the Board finds that the August 2017 private opinion report provides competent, credible, and probative evidence which shows that the current PTSD is etiologically related to service. There is no contrary medical evidence or medical opinion of record. For the reasons discussed above and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for PTSD is warranted as directly related to service. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 3.303(a), (d), 3.304. ORDER Service connection for PTSD is granted. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs