Citation Nr: 1823779 Decision Date: 04/19/18 Archive Date: 04/26/18 DOCKET NO. 14-31 358 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Anchorage, Alaska THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD S. Moore, Associate Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1969 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision from the RO in Anchorage, Alaska, which denied service connection for PTSD. Since issuance of the Statement of the Case in November 2013, additional evidence has been received by the Board, for which RO waiver of initial consideration was provided during the Board hearing; therefore, the Board may consider this evidence in the first instance. 38 U.S.C. § 7105(e) (2012); 38 C.F.R. § 20.1304 (2017). In April 2017, the Veteran testified at a Board videoconference hearing from the RO in Anchorage, Alaska, before the undersigned Veterans Law Judge (VLJ) in Washington, DC. The hearing transcript has been associated with the record. The instant matter is a Veterans Benefit Management System (VBMS) appeal. The Board has reviewed both the VBMS and the "Virtual VA" files so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran is currently diagnosed with PTSD. 2. Stressor events related to engaging in combat with the enemy and fear of hostile military or terrorist activity occurred during service. 3. The current PTSD is related to the stressor events that occurred during service. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2017). As the instant decision grants service connection for PTSD, no further discussion of VA's duties to notify and to assist is necessary. Service Connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The Veteran is currently diagnosed with PTSD, which is not a "chronic disease" under 38 C.F.R. § 3.309 (a); therefore, the presumptive service connection provisions under 38 C.F.R. § 3.303(b) for service connection based on "chronic" symptoms in service and "continuous" symptoms since service are not applicable to this disability. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in-service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran's military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran "engaged in combat with the enemy." Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran's lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f)(2). No further development or corroborative evidence is required, provided that the claimed stressor is "consistent with the circumstances, conditions, or hardships of the veteran's service." Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran's lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran's testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). 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, 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 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). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to "fear of hostile military or terrorist activity," then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). Under 38 C.F.R. § 3.304(f)(5), if a PTSD claim is based on in-service personal assault, evidence from sources other than the veteran's service records may corroborate the veteran's account of the stressor incident. Examples of such evidence include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy. Evidence of behavior changes following the claimed assault is one type of relevant evidence that may be found in these sources. Examples of behavior changes that may constitute credible evidence of the stressor include, but are not limited to: a request for a transfer to another military duty assignment; deterioration in work performance; substance abuse; episodes of depression, panic attacks, or anxiety without an identifiable cause; or unexplained economic or social behavior changes. Under 38 C.F.R. § 3.304(f)(5), VA may submit any evidence that it receives to an appropriate medical or mental health professional for an opinion as to whether it indicates that a personal assault occurred. The question of whether a veteran was exposed to a stressor in service is a factual one, and VA adjudicators are not bound to accept uncorroborated accounts of stressors or medical opinions based upon such accounts. Wood v. Derwinski, 1 Vet. App. 190 (1991), aff'd on reconsideration, 1 Vet. App. 406 (1991). Hence, whether a stressor was of sufficient gravity to cause or support a diagnosis of PTSD is a question of fact for medical professionals, and whether the evidence establishes the occurrence of stressors is a question of fact for adjudicators. In this case, the Veteran asserts that PTSD developed as a result of being exposed to traumatic events while working as medical corpsman during service. The Veteran testified to working as a medical corpsman in service; during which he was exposed to stressful events of providing medical aid to fellow wounded soldiers in in Vietnam, sometimes while under hostile military attack. The Veteran testified to experiencing psychiatric symptoms in service and since service separation. See April 2017 Board hearing transcript. Initially, the Board finds that the Veteran is currently diagnosed with PTSD, as evidenced by July 2012 and June 2017 VA treatment records. After review of the lay and medical evidence, the Board finds that the evidence is at least in equipoise on the question of whether the Veteran experienced traumatic events related to engaging in combat with the enemy and fear of hostile military or terrorist activity during service. During the April 2017 Board hearing, the Veteran testified that he served as an E5 first responder corpsman during service. The Veteran testified that while serving in Vietnam, he responded to the scene of a shooting, during which he carried and provided medical aid to a soldier with a fatal abdominal gunshot wound. The Veteran testified that in June 1970, while working as a medical corpsman in Vietnam, he provided medical aid to several wounded soldiers during a hostile military action, seven of whom did not survive. The Veteran testified to experiencing psychiatric symptoms of PTSD in service after he returned from Vietnam and since service separation. See April 2017 Board hearing transcript. The evidence of record also includes the DD Form 214, which shows that the Veteran's military occupation specialty was a medical corpsman and a May 1970 military personnel record, which reflects that the Veteran received a letter of appreciation from the Company Commander for responding to the scene of a shooting and providing medical aid to a soldier with an abdominal gunshot wound on May 17, 1970. The DD Form 215 and a November 1970 military personnel record reflects that the Veteran was also awarded the Bronze Star with "V" Devise for an act of heroism while serving as a military aidman for the 84th Engineer Battalion in Qui Nhon, Vietnam. On June 5, 1970, the Veteran provided medical aid and assistance to several wounded soldiers, seven of whom did not survive, while under heavy mortar, automatic weapons, and sapper attack. These lays statements attest to the traumatic nature of some of the events the Veteran was exposed to during service. Based upon the foregoing, and resolving reasonable doubt in the Veteran's favor, the Veteran's in-service stressor event relating to engaging in combat with the enemy and fear of hostile military or terrorist activity is confirmed. Next, the Board finds that the Veteran's PTSD stressor is adequate to support a diagnosis of PTSD, and that the evidence is at least in equipoise on the question of whether the PTSD symptoms are related to the recognized stressors. In July 2012, the Veteran presented to Anchorage VA Medical Center for an initial mental health evaluation. The report reflects that the Veteran's primary care physician diagnosed PTSD and referred the Veteran for a formal consultation in June 2012. The Veteran had not acknowledged symptoms of PTSD in the past but recognized and was told by family members that his anger and short fuse had worsened. During the July 2012 mental health evaluation, the Veteran reported a history of trauma experiences in combat, including being attacked by others, receiving artillery and mortar fire, handling or recovering human remains, witnessing dead bodies, and witnessing serious injury or the death of someone he knew. Upon examination, Dr. Bilberry diagnosed PTSD and explained that the Veteran is a Vietnam Combat Veteran with symptoms of PTSD that are worsening with age and medical issues who has been hesitant to accept diagnosis. See July 2012 VA treatment record. The VA examiner in June 2013 assessed that both of the verified stressors were adequate to support PTSD based on fear of hostile military or terrorist activity. A March 2014 letter from the Veteran's friend and former roommate reflects that the Veteran's friend has known the Veteran since high school. The Veteran's friend explained that the Veteran was socially well adjusted and outgoing prior to service; however, after the Veteran separated from service and resumed college the Veteran had difficulties maintaining employment and the Veteran exhibited behaviors of alcohol abuse, poor money management, progressive social isolation, and a decline in academic performance. The Veteran's friend noted that several students, including the Veteran's friend advised the Veteran to seek help, but the Veteran would not acknowledge having a problem. The Veteran's friend attributed the dramatic changes in the Veteran's demeanor and behavior after service separation to the Veteran's experiences in Vietnam. During the April 2017 Board hearing, and the June 2017 VA psychiatric evaluation the Veteran' reported a history of problems with anger and fighting, abnormal dreams, sleep disturbance and avoidance, distrust of authority figures, compulsive behavior and hypervigilance, and sexual acting out during service after returning from Vietnam, and since service separation. The Veteran also reported an onset of alcohol abuse in 1971 as a means of self-medicating his symptoms, as drinking alcohol helped diminish his nightmares. The Veteran endorsed sobriety since August 1975, and noted a decreased in psychiatric symptoms since abstinence from alcohol; however, the Veteran reported continued problems with occasional nightmares and reliving dreams, sleep disturbance, anger, aversion to physical touch, compulsive checking the locks, and occasional crying. See April 2017 Board hearing transcript, June 2017 VA treatment record. The VA psychiatrist in June 2017 diagnosed chronic PTSD and explained that the Veteran had combat PTSD with PTSD symptoms that have diminished some over time. See June 2017 VA treatment record. The June 2013 VA examiner did not render diagnosis of any mental disorder and explained that the Veteran did not meet the full criteria for PTSD because the Veteran did not report or describe current significant distress from re-experiencing symptoms, avoidance symptoms, hyperarousal symptoms, or significant social or occupational impairment. The Board finds that other credible lay and medical evidence of record support a current diagnosis of PTSD, and the record reflects that the Veteran has a history of diminishing his symptoms and difficulty accepting his diagnosis in the past, so the June 2013 VA PTSD examination report is of little probative value, as it was based on an inaccurate history of past and present psychiatric symptomatology. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that an opinion based upon an inaccurate factual premise has no probative value). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for PTSD have been met. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs