Citation Nr: 20003296 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 13-31 518 DATE: January 14, 2020 ORDER Service connection for PTSD is granted. FINDING OF FACT The Veteran has PTSD that is related to fear of hostile military or terrorist activity during his Persian Gulf service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f), 4.125 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from September 1975 to September 1978, and from October 1990 to August 1991. He had subsequent service in the National Guard, which involved periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This appeal comes before the Board of Veterans’ Appeals (Board) from a November 2011 rating decision of the RO in Atlanta, Georgia. In August 2016, the Veteran and his spouse presented testimony at a Board hearing, chaired via videoconference by the undersigned Veterans Law Judge, and accepted such hearing in lieu of an in-person hearing before a Member of the Board. See 38 C.F.R. § 20.700(e) (2018). At the Board hearing, the Veteran was informed of the basis for the RO’s denial of this claim and he was informed of the information and evidence necessary to substantiate this claim. 38 C.F.R. § 3.103 (2018). A transcript of the hearing is associated with the claims file. In December 2017, the Board remanded this issue for additional evidentiary development. The appeal has since been returned to the Board for further appellate action. The Board also dismissed/decided several other issues on appeal at that time. The Board dismissed claims of entitlement to service connection for disorders of the right and left elbow, and of the left foot; dismissed an increased rating claim for a right knee disability; granted service connection for a left knee disability; and, denied service connection for a right wrist disorder, vertigo, sarcoidosis, and sleep apnea. The Board’s disposition of those matters is final. See 38 C.F.R. § 20.1100 (2018). Service Connection—Law and Regulations The Veteran is seeking service connection for PTSD on the basis that it is related to his fear of hostile military or terrorist activity during service in the Persian Gulf during Operation Desert Shield/Desert Storm. VA law provides that, for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service, during a period of war, or other than a period of war, the United States will pay to any veteran thus disabled and who was discharged or released under conditions other than dishonorable from the period of service in which said injury or disease was incurred, or preexisting injury or disease was aggravated, compensation, except if the disability is a result of the veteran’s own willful misconduct or abuse of alcohol or drugs. 38 U.S.C. §§ 1110, 1131 (West 2014). Entitlement to service connection on a direct basis requires (1) evidence of current nonservice-connected disability; (2) evidence of in-service incurrence or aggravation of disease or injury; and (3) evidence of a nexus between the in-service disease or injury and the current nonservice-connected disability. 38 C.F.R. § 3.303(a); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis requires (1) evidence of a current nonservice-connected disability; (2) evidence of a service-connected disability; and (3) evidence establishing that the service-connected disability caused or aggravated the current nonservice-connected disability. 38 C.F.R. § 3.310(a), (b); Wallin v. West, 11 Vet. App. 509, 512 (1998). For specific enumerated diseases designated as “chronic” there is a presumption that such chronic disease was incurred in or aggravated by service even though there is no evidence of such chronic disease during the period of service. In order for the presumption to attach, the disease must have become manifest to a degree of 10 percent or more within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Presumptive service connection for the specified chronic diseases may alternatively be established by way of continuity of symptomatology under 38 C.F.R. § 3.303(b). However, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic in 38 C.F.R. § 3.309(a) Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regarding psychiatric disorders, only psychoses are included among the presumptive chronic diseases. Service connection for posttraumatic stress disorder requires (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (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). 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 posttraumatic stress disorder 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. For purposes of this paragraph, “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)(4). After the evidence has been assembled, it is the Board’s responsibility to evaluate the entire record. 38 U.S.C. § 7104(a) (West 2014). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3 (2018). A VA claimant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), Gilbert at 54. Entitlement to service connection for PTSD. Service treatment records and personnel records confirm that the Veteran served in Saudi Arabia during the Operation Desert Shield/Desert Storm. There were no complaints, clinical findings, or diagnoses directly pertinent to an acquired psychiatric disorder during that period. When examined at discharge from active duty in April 1991, the Veteran reported no history of, or current, depression or excessive worry, or nervous trouble of any sort. A June 2010 VA 21-0781a (Statement in Support of Claim for PTSD Secondary to Personal Assault) received in June 2010 does not reveal any account of personal assault, but reveals the Veteran’s assertion that his unit was stationed in Saudi Arabia in January 1991, around 60 miles from the Iraqi border. He reportedly felt a lot of anxiety because he had heard that a war with Iraq was pending but no one knew when it would happen. He had heard that Saddam Hussein had a strong military unit, especially his Republican Guard. The anxiety increased when fighting started. When Iraqis started shooting SCUD missiles, there was a post-wide alert/alarm. He and his unit would put on chemical suits with gas masks and head to a bunker for cover. There they would wait until it was clear to come out. Since that time, he reported experiencing nightmares 2 to 3 times a week where he is being chased by someone or something (Record 06/23/2010). An April 15, 2010, Physician Note reveals complaint of memory problems, depression, and memory loss, according to his wife, chronic for the prior 10-15 years (Record 10/26/2013). A May 10, 2010, VA Mental Health Note reveals the Veteran’s complaint of nightmares, usually about being chased by someone or something, although he admitted that he often does not remember the content of his nightmares. He could not remember the onset of nightmares, but his wife reportedly thought he had this problem since returning from Saudi Arabia in 1991. The nightmares themselves provoked anxiety, but this was complicated by apparent parasomnia/sleep paralysis. The Veteran found these episodes terrifying and he would yell out, waking his wife, or would feel that he saw and heard things from his dreams present in the room upon waking. He was also referred for depression, but the examiner noted that the depression seemed situational in nature, due to his being laid off from his job of 30+ years recently (due to downsizing). Though he was given a severance package and was working a part-time job, finances were still tight and he worried about making ends meet in the future. His wife was working full time and he was looking for full-time work. His depression was thought likely to improve or remit completely if he were able to find a job. The Veteran’s observed mental status appeared to be within normal limits (Record 07/25/2014). August 13, 2010, Psychiatry Medication Management note reveals no complaints that day. He denied depressive symptoms and psychotic symptoms. The diagnosis was major depressive disorder in partial remission (Record 07/25/2014). The report of an April 2011 VA PTSD Examination reveals complaint of problems sleeping at night with nightmares, beginning in the early 90s, approximately 1 or 2 per week. Themes were of feeling helpless, weak, and scared. He was always running from something. Sometimes he would panic and feel paralyzed. Dreams would wake him up, but he was able to return to sleep. He reported fear of the unknown. Regarding his service, he was close to the fighting (30 miles), and worried about Saddam Hussein’s atrocities coming toward them. He was worried about being in an untrained National Guard unit. Test results indicated that the Veteran did not meet criteria for PTSD. He met neither the criterion B, C, nor D, of the DSM-IV diagnosis. The diagnosis was depressive disorder NOS. The examiner concurred with the psychiatric evaluation from May 2010 which reported the veteran’s depression seems situational, related to his job layoff and financial worries. There was no objective or clinical evidence that his mental condition was related to his military experiences (Record 04/14/2011). A September 30, 2011, Psychiatry Note reveals a historical diagnosis of a major depressive disorder. The last therapy note from May of 2010 indicated a depressive reaction to loss of work, and his concurrent VA examination found a diagnosis of depressive disorder NOS, which may be a secondary depression to a general medical condition (Record 09/14/2016). An October 3, 2011, VA Mental Health Note reveals there were no reported problems or stressors. The Veteran stated “I don’t know why I am here. I just received a letter in the mail stating I had this appointment.” The examiner noted that the Veteran did not have a mental health diagnosis on his problem list and denied taking any psychotropic medications. The Veteran did not wish to complete a full psychosocial assessment at the time, since he was not willing to receive mental health services. A PTSD screen was negative, as was a depression screen (Record 10/26/2013). A December 2012 statement from the Veteran’s spouse reports that they had been married for 35 years and that she first met him in 1974. When he arrived home from Saudi Arabia, he had and still has several health problems. He was also depressed and still had some mental issues. He behaved noticeably differently, however he did not notice it himself. He hated to admit it. He had nightmares, yelled in his sleep, acted depressed, was not able to remember things, and was very introverted. He had previously been very outgoing (Record 12/07/2012). A March 6, 2013, VA Social Work Consult reveals complaint of sleep problems. The Veteran stated his PTSD was not bothersome, except for the sleep and nightmares. He reported about 4 hours of sleep per night. The Veteran reported that he got depressed at times. He reported working part time instead of full time due to the economy. He stated this made finances tight, but they were able to make it. He reported his wife of 33 years was very supportive (Record 07/25/2014). A December 2, 2013, VA Mental Health Note reveals the chief complaint that: “I can’t sleep and I’m having nightmares.” He also reported: “I can’t go to the gas station because people that remind me of Arabia scare me.” He denied exaggerated startle response or hypervigilance. He stated he did not experience trauma in Saudi Arabia, but “I was just always stressed out, nothing big happened.” The diagnosis was depressive disorder NOS, Consider PTSD (Record 07/25/2014). VA Psychiatrist Notes throughout most of 2015 include diagnoses of depression and other specified trauma and stressor-related disorder. Starting in November 2015, a diagnosis of PTSD is included (Record 09/14/2016). At the Board hearing, the Veteran testified that he had been diagnosed with PTSD in 2014 to 2016. His wife testified that he was different when he returned from his Gulf War service (Record 08/25/2016). An August 12, 2016, VA Mental Health Note reveals that 3 PTSD criteria were met. A PTSD diagnosis was “suggested” (Record 09/14/2016). A September 2016 letter from the Veteran’s son states that, after his return from the Middle East, he was very different. He was withdrawn, more quiet than normal, and experiencing irregular sleep patterns. These symptoms had not changed, but had gotten worse. Many times, while family and friends were laughing and enjoying one another, he would go off into a room by himself and shut the door. It was almost as if he was afraid of the crowd and of loud noise. There were times when he appeared to be very anxious. Also, he experienced nightmares, fighting in his sleep, and severe insomnia (Record 09/14/2016). An October 2016 letter from the Veteran’s daughter reveals that the Veteran returned from his Gulf War service very different than he was before. The close bond that she had felt with her father was no longer there. He was introverted and never wanted to do the activities they had once done together (Record 09/14/2016). The Board remanded the PTSD claim in December 2017 to obtain an opinion as to whether the Veteran has PTSD. The report of a September 2019 VA Examination reveals a diagnosis of adjustment disorder. The examiner determined that none of the criteria for a diagnosis of PTSD were satisfied. The examiner explained that, although the Veteran reports depression at times, he was unable to describe a clear symptom picture. He believes he has PTSD, but had difficulty identifying stressors in Saudi Arabia. He talked about Iraqi troops coming toward Saudi Arabia and the shooting of SCUD missiles. He described undergoing training to prepare him for possible attacks. He reported poor sleep at night, but naps during the day. He has nightmares at least twice a week, but had difficulty describing them. His wife was present and often promoted a case for PTSD—the two often disagreed. The Veteran’s wife said he is scared around Muslims, but Veteran did not appear to agree. Review of record indicated a previous examination in April 2011. The diagnosis at that time was depression NOS. His separation medical exams do not indicate any psychiatric problems. He has worked at a variety of jobs over the years with no performance deficits. He has been employed with the USPS since 2014 and wants to continue as a full-time employee. The examiner noted that many of his reported symptoms can be accounted for by obstructive sleep apnea and refusal to use the CPAP. His adjustment is to conditions present in his life now (not associated with the service), such as work, marriage, obstructive sleep apnea and managing his schedule. According to the examiner, this condition is not associated with disease, injury or other circumstances of service (probability less than 50%) (Record 09/30/2019). The Veteran’s treating VA psychologist submitted a statement in October 2019. He noted that he had treated the Veteran since March 2016 for symptoms of PTSD and depression, and these diagnoses were added to his Problem List in October 2015. In contrast to the September 2019 VA examiner, the Veteran’s treating psychologist noted that the Veteran experiences an overwhelming feeling of fear resulting from nightmares, and avoidance of people with middle-eastern appearance. He reported symptoms of social withdrawal, avoidance of large groups, hypervigilance, and exaggerated startle response (Record 10/22/2019). The Veteran’s representative submitted written argument in December 2019. The representative noted the multiple diagnoses of PTSD in the claims file. The representative argued that the September 2019 VA examination is inadequate and requested the Board remand the claim yet again for another opinion from a different individual (Record 12/12/2019). After a review of all of the evidence, the Board finds that a diagnosis of PTSD is adequately substantiated. The record at the time of the December 2017 remand was unclear regarding the validity of the diagnosis of PTSD, the basis for the diagnosis not having been adequately discussed. Unfortunately, the record subsequent to the remand has not been clarified on this point. Rather, the record contains an additional opinion against a PTSD diagnosis, and an additional opinion in favor of a PTSD diagnosis. Also, VA psychiatry and social work notes consistently list PTSD as an active diagnosis. As recently as July 31, 2019, the VA Psychology Notes list PTSD as an active diagnosis with positive PTSD screens (Record 08/15/2019 at 13). While the September 2019 VA opinion is certainly competent evidence that the Veteran does not have PTSD, the Board finds no basis to assign greater probative weight to that opinion than to the October 2019 opinion of the VA psychologist who has treated the Veteran for the past five years for his psychiatric complaints. While the Board could certainly remand the claim yet again, to obtain another opinion, as requested by the Veteran’s representative, the Board finds that the evidence in favor of a diagnosis of PTSD has attained relative equipoise with the evidence against such a diagnosis. Therefore, with resolution of all reasonable doubt in favor of the claim, the Board concludes that the Veteran has PTSD. Regarding the claimed stressor, the October 2019 opinion, issued by a VA psychologist, is competent evidence of the veracity of the Veteran’s stressor involving fear of hostile military or terrorist activity. That opinion finds that the Veteran’s symptoms are associated with his fear of hostile military or terrorist activity, and that this fear is adequate to support the diagnosis of PTSD. The Board also finds that the Veteran had the type of service contemplated under 38 C.F.R. § 3.304(f)(4) as placing him in fear of hostile military or terrorist activity. His service in the Gulf War in close proximity to the front lines reasonably establishes such service. His testimony that he experienced fear during his deployment is consistent with his written statements and is deemed competent and credible evidence. The claimed stressor is consistent with the places, types, and circumstances of the Veteran’s service. In the absence of clear and convincing evidence to the contrary, the Veteran’s lay testimony alone is adequate to establish the occurrence of the claimed in-service stressor. In sum, the Board finds that the Veteran has PTSD that is related by competent evidence to his fear of hostile military or terrorist activity during confirmed service in the Persian Gulf War. In light of these findings of fact, the Board concludes that service connection for PTSD is warranted. As this represents a complete grant of the benefit sought, there are no further duties to notify or assist. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Cramp The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.