Citation Nr: 1821458 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-09 603 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement service connection for an acquired psychiatric condition, to include post-traumatic stress disorder (PTSD), generalized anxiety disorder, and adjustment disorder with depressed mood (psychiatric disability). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Rescan, Associate Cousel INTRODUCTION The Veteran served on active duty in the United States Air Force from July 1977 to September 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boise, Idaho. Subsequently, jurisdiction was transferred to the RO in Honolulu, Hawaii. In May 2014, the Veteran testified during a hearing via video conference before the undersigned. A transcript of that hearing is of record. This case was previously before the Board in June 2015 and it was remanded in order to further develop the Veteran's claim. In January 2018 the case was returned to the Board, and the Board found that the opinions of record, both positive and negative, contained inadequacies as to the nature and etiology of the Veteran's disability. In turn, the Board ordered a Veterans Health Administration (VHA) medical opinion in order to get a thorough and complete analysis regarding the nature and etiology of the Veteran's disability. In February 2018, the Board received a VHA opinion in connection with the current appeal. Given the favorable decision below, the Board finds that the Veteran will not be prejudiced by the Board's issuance of a decision prior to the Veteran and his representative being provided with a copy of the VHA opinion. FINDING OF FACT The Veteran's PTSD is related to his military service. CONCLUSION OF LAW The criteria for service connection for an acquired psychiatric disorder, diagnosed as PTSD, have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The disposition of the claim decided below is fully favorable to the Veteran. Therefore, the Board finds that all notification and development action necessary to render a fair decision on this matter has been accomplished. 38 U.S.C. §§ 5103, 5103A. II. The Claim The Veteran asserts that his psychiatric disability is due to his military service. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed at 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013)). In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service. 38 C.F.R. § 3.303(d). Other specifically enumerated disorders, including a psychosis, will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Service connection for PTSD requires a medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The evidence required to support the occurrence of an in-service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C. § 1154(b) (2012); 38 C.F.R. § 3.304(f). Effective July 13, 2010, 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. "[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 75 Fed. Reg. 39,843 (Jul. 13, 2010) (codified at 38 C.F.R. § 3.304(f)(3)). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale and a basis in objective supporting clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Lastly, in order to deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). As to a current diagnosis, the record reflects that the Veteran has received several different psychiatric diagnoses to include PTSD throughout the pendency of the appeal. As to the in-service incurrence, the Veteran testified that he experienced two significant stressors while in service. The first event the Veteran identified occurred when the Veteran was stationed in Saudi Arabia. The Veteran acknowledged that he left shortly before the bombing occurred at the Khobar Towers, but he knew people who were killed in this terrorist attack. The other incident that the Veteran identified was when he was stationed in Panama during Operation Just Cause. The Veteran was stationed at Howard Air Force Base and stated that he was afraid that his base would be attacked by the Panama Defense Forces. The Veteran also stated that after the operation in Panama was completed, the Veteran saw dead bodies stored in a temporary morgue on base. See May 13, 2014 Board Hearing Transcript. Initially, the Board has reviewed the Veteran's service treatment records for a psychiatric disability. After a review of the Veteran's service treatment records, the Board finds no evidence of a psychiatric disability while in service. In fact, when the Veteran retired from the Air Force, his separation examination was silent for any signs or symptoms of a psychiatric condition. See August 24, 1999 service treatment record. Turning to the medical evidence at hand, the Board acknowledges that the Veteran did receive a diagnosis for adjustment disorder from a VA doctor. However, that diagnosis was due to his civilian career and not his military service. The Board notes that the doctor treating the Veteran opined that "at present does not meet DSM-IV-criteria for clinical depression, anxiety, psychosis." See August 28, 2012 VA progress note. In addition, the doctor reported that the Veteran talked about stressful experiences while active duty in Air Force, assigned in various places, which affected him temporarily. The doctor then noted that the Veteran appeared to have readjusted "fairly well" to civilian life leading to a successful career with Homeland Security. The doctor thereafter concluded that the Veteran's current sleep disturbance and irritability most likely was related to the Veteran's adjustment to a new environment and job. See August 28, 2012 VA progress note. In addition to the VA medical records, the Board has also examined the medical reports that the Veteran has submitted. First of all, the Veteran submitted an evaluation by Dr. E. S. Dr. E. S. examined the Veteran in May 2014 and opined that the Veteran had PTSD. The Board places little if any probative value on this opinion. The Board has reached this conclusion because the doctor simply listed the various criteria for PTSD and stated that the Veteran met the diagnostic criteria for PTSD. Moreover, the Board also notes that the doctor listed that the Veteran was present for the attack at Khobar Towers as one of the in-service stressors but the Veteran was not present when that event took place. Since the opinion provided by Dr. E. S. is not based on accurate information, is not thorough and well-reasoned, and only provides a conclusory analysis, the Board can only place little if any probative value on it. See Bloom, supra; Davidson, supra. The Veteran also submitted a report from Dr. A. P. Dr. A. P. examined the Veteran in 2011 and took a detailed history from him regarding his military service. After documenting the Veteran's detailed military history, the doctor opined that based on the Veteran's history, psychological evaluation, and mental status examination, there are findings that the patient is suffering from symptoms which fulfill the criteria for PTSD. Then the doctor simply listed the criteria for PTSD and stated that the Veteran met each element for a diagnosis of PTSD without an explanation as to what events in service led the doctor to believe that the Veteran has a psychiatric condition that is due to his military experience. Moreover, the doctor also diagnosed the Veteran with generalized anxiety disorder but also did not explain if this was related to his military service. See Dr. A. P. May 2011 report. The Board finds that the doctor's opinion is not thorough or well-reasoned. The Board has reached this conclusion because the opinion is conclusory in nature and the diagnosis is provided without an explanation as to why the Veteran has a psychiatric disability caused by his military service. For these reasons, the Board only places little if any probative value on this opinion. See Bloom, supra; Davidson, supra. The Veteran was also afforded several VA examinations to determine the nature and etiology of his psychiatric disability. The Veteran attended VA examinations in May 2012, December 2013, and in January 2016. At each examination the examiner found the Veteran did not meet the criteria for a mental disorder nor did he qualify for a diagnosis for PTSD as he did not meet the stressor criteria required for a diagnosis of PTSD. See May 2012, December 2013, and January 2016 VA examinations. The Board finds these opinions as they relate to the issue of PTSD to be inadequate, and the Board is unable to assign any probative weight to these examination reports in regards to this specific issue. The Board has reached this conclusion because the opinions provided by the VA examiners in this case have applied an objective, not subjective, standard as to the Veteran's reported in-service stressors. See Cohen v. Brown, 10 Vet. App. 128, 140-41 (1997). On the other hand, the Board is able to place some probative value on these VA examinations as they relate to the additional psychiatric conditions that that have been identified in the Veteran's medical history. The Board has reached this conclusion because these examiners reviewed the Veteran's medical history, interviewed the Veteran, and examined him before they determined that he did not have a diagnosis for any psychiatric disability. See Davidson, supra. Lastly, the Board has examined the VHA opinion regarding the nature and etiology of the Veteran's psychiatric condition. The examiner stated that the Veteran has the diagnosis of PTSD and that the current psychiatric disorder of PTSD is as least as likely as not related to the Veteran's military service. The examiner opined that "based on the events that the patient was exposed to and the symptoms that patient has, patient has the diagnosis of PTSD." See February 2018 VHA Medical Opinion. In sum, the Board finds that service connection for an acquired psychiatric disorder, diagnosed as PTSD, is warranted. In reaching this conclusion, the Board has reviewed the available lay statements, his medical history, and the available medical opinions. After a review of the record, the Board finds that the evidence, both positive and negative as to the issue of service connection for PTSD is at least in equipoise. While the record does reveal diagnoses of generalized anxiety disorder and adjustment disorder, these disorders have not been linked to service or have specifically been linked to non-service etiology, and the Board does not find that any further development would assist in the substantiation of claims for service connection for these psychiatric disabilities. No other current or recently diagnosed psychiatric disability has been linked to service, and the Board also does not find that any further development would help to substantiate a claim for service connection for any other psychiatric disorder. Therefore, based on the foregoing and resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is only warranted for a psychiatric disorder, diagnosed as PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as PTSD, is granted. ____________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs