Citation Nr: 1821153	
Decision Date: 04/10/18    Archive Date: 04/19/18

DOCKET NO.  14-12 802	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to service connection for posttraumatic stress disorder (PTSD).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

J. Rothstein, Associate Counsel


INTRODUCTION

The Veteran served on active duty from July 1963 to September 1966.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which inter alia, denied service connection for PTSD.

In February 2018, the Veteran and his wife testified during a hearing before the undersigned Veterans Law Judge at the RO.  A transcript of that hearing is of record.

As for the matter of representation, during the pendency of the appeal, in August 2016, the Veteran executed a VA Form 21-22 (Appointment of Veterans Service Organization as Claimant's Representative) in favor of Disabled American Veterans (DAV), thereby changing his prior representation by the Veterans of Foreign Wars of the United States.  Pursuant to 38 C.F.R. § 20.1304(b) (2017), any request for a change of representation after 90 days following the mailing of notice to the claimant that an appeal has been certified to the Board for appellate review and that the appellate record has been transferred to the Board must be mailed to the Board with a good cause explanation.  Here, the Veteran's appeal was certified to the Board in May 2014.  Although no good cause explanation was provided for this change in representation, as a national service officer with DAV appeared at the February 2018 Board hearing as the Veteran's representative, the Board has nonetheless accepted the change in representation.


FINDING OF FACT

The evidence is approximately evenly balanced as to whether the Veteran has PTSD that is related to a conceded in-service stressor.


CONCLUSION OF LAW

With reasonable doubt resolved in the favor of the Veteran, PTSD was incurred in service.  38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the current disability and an in-service precipitating disease, injury or event.  Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

There are particular requirements for establishing PTSD in 38 C.F.R. § 3.304(f) that are separate from those for establishing service connection generally.  Arzio v. Shinseki, 602 F.3d 1343, 1347 (Fed. Cir. 2010).  Establishing service connection for PTSD requires "(1) a current medical diagnosis of PTSD; (2) a link between the current symptoms and an in-service stressor; and (3) 'credible supporting evidence that the claimed in-service stressor occurred.'"  Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. 2017) (citing 38 C.F.R. § 3.304(f)).

If a stressor claimed by a veteran is related to the veteran's fear of hostile military 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, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor, as long as the claimed stressor is consistent with the places, types, and circumstances of the veteran's service and there is no clear and convincing evidence to the contrary.  38 C.F.R. § 3.304(f)(3).  "Fear of hostile military activity" is defined to mean 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, and the veteran's response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.  Id.  An example of such an event or circumstance is incoming artillery, rocket, or mortar fire.  See id.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant.  38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, the Veteran reported coming under enemy fire while aboard the USS Basilone in the Saigon River during active service.  As noted in the March 2012 rating decision and the March 2014 statement of the case, the RO has conceded this stressor and has considered such, as one based on fear of hostile military activity.  See also February 2012 Request for Physical Examination.  In this regard, information from the Naval History & Heritage Command Center conveyed that on May 7, 1966, the USS Basilone provided gunfire support, including a two-day trip up the Saigon River to bombard Viet Cong targets; and that after departing the Saigon River, the USS Basilone contributed firepower to an air attack and shore landing against a concentration of the Viet Cong.  In addition, the Veteran's service personnel records show that he served aboard the USS Basilone from March 1966 to September 1966.  Thus, the Veteran's assertions concerning this claimed in-service stressor to be consistent with the places, types, and circumstances of his military service.  See 38 U.S.C. § 1154(a).  Therefore, even without recourse to 38 C.F.R. § 3.304(f)(3), there is credible supporting evidence that the claimed in-service stressor event occurred.

In addition, there has been conflicting evidence as to whether the Veteran has a valid PTSD diagnosis.  In pertinent part, the Veteran underwent VA PTSD examinations in September 2010 and February 2012, and these VA examiners found that the Veteran did not meet the diagnostic criteria for PTSD.  See September 2010 VA PTSD Examination Report, February 2012 VA PTSD Examination Report, and February 2012 VA Addendum Opinion.  By contrast, multiple private treatment records reveal an Axis I diagnosis of PTSD.  This includes a July 2016 psychological report and PTSD Disability Benefits Questionnaire (DBQ) as well as a February 2018 progress letter and PTSD DBQ from a private psychologist, Dr. B.  This also includes an August 2017 PTSD DBQ from a private psychiatrist, Dr. G.  Given the above conflicting findings concerning a PTSD diagnosis, the evidence is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD.  See Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD).  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 

Accordingly, as there is a current medical diagnosis of PTSD, as well as a conceded in-service stressor, the remaining question is whether there is a link between the Veteran's current PTSD symptoms and the claimed in-service stressor.  On this point, Dr. B. and Dr. G. have provided positive opinions.  For instance, after interviewing the Veteran and documenting his reported symptoms, as well as reviewing the Veteran's treatment records (from service and since separation from service), Dr. B. opined that the Veteran's PTSD was "military related and more likely than not due to his U.S. Navy experiences" in the July 2016 psychological report.  Also in the July 2016 and February 2018 PTSD DBQs, Dr. B. opined that after examination of the Veteran and review of all military, private and VA medical records available, the Veteran's PTSD was more likely than not related to his military service in the Navy and the constant fear of his life.  In the February 2018 PTSD DBQ, Dr. B. noted that she had been treating the Veteran for about 2 years.  Also, in the February 2018 progress letter, Dr. B. opined that the Veteran had chronic combat-related PTSD as a consequence of his military service.  In addition, in the August 2017 PTSD DBQ, after noting that he reviewed Dr. B.'s report and service treatment records, Dr. G. opined that the Veteran had PTSD that was related to his military combat in the Navy.  

Even though Dr. B.'s and Dr. G's opinions did not explicitly describe the Veteran's in-service stressor in great detail and did not provide extensive rationales, this does not render the opinions inadequate.  See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record).  In this regard, it is readily apparent that PTSD was diagnosed as a result of the Veteran's claimed in-service stressor.  Notably, as Dr. B's opinions were based on examination and interview of the Veteran, as well as review of all military, private and VA medical records available, the Board finds his opinions particularly probative.  Moreover, as the September 2010 and February 2012 VA examiners concluded that the Veteran did not meet the diagnostic criteria for PTSD, there is no direct contrary medical opinion(s) in the record.

For the foregoing reasons, the evidence is at least evenly balanced as to whether there is a link between the Veteran's PTSD and his conceded in-service stressor.  As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, and each of the criteria of 38 C.F.R. § 3.304(f) have therefore been met, entitlement to service connection for PTSD is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

Entitlement to service connection for PTSD is granted.



____________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs