Citation Nr: 20008253 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 19-21 024 DATE: January 31, 2020 ORDER Entitlement to service connection for posttraumatic stress disorder with depression (hereinafter “PTSD”) is granted. FINDING OF FACT The Veteran has a current diagnosis of PTSD that is related to his in-service stressors. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran's favor, the criteria to establish service connection for PTSD are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.304(f) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from August 1974 to December 1974 and had service in the Army Reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2017 rating decision, the RO denied the Veteran’s original claim for service connection for PTSD because VA was unable to corroborate the Veteran’s claimed stressors and the evidence did not show that he had a diagnosed mental health condition that was incurred in or caused by his military service. Thereafter, in February 2018, the Veteran was provided a VA examination which confirmed diagnoses of PTSD and unspecified depressive disorder, and in a March 2018 addendum opinion, a VA examiner opined that both conditions were caused by the Veteran’s claimed in-service stressors. See February 2018 VA Review PTSD Disability Benefits Questionnaire (DBQ); March 2018 VA addendum opinion. As new and material evidence was received within one year after the November 2017 rating decision, the rating decision did not become final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. As such, the Board will review the claim de novo based on the evidence of record. The Board observes that the Veteran submitted lay and medical evidence relevant to his PTSD claim since the RO’s adjudication in the June 2019 Statement of the Case, without a waiver of initial RO consideration. See documents submitted with July 2019 Form 9; see also Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law No. 112-154, 126 Stat. 1165 (amending 38 U.S.C. § 7105 to provide that if new evidence is submitted with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests agency of original jurisdiction (AOJ) consideration). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for PTSD Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing 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 present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Specific to claims of PTSD, service connection requires: (1) medical evidence diagnosing the condition 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). 38 C.F.R. § 3.304 (f). As the instant case was certified to the Board after August 4, 2014, a diagnosis of PTSD must be made in accordance with the criteria of the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.125. 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.” 38 C.F.R. § 3.304(f). If VA determines that the Veteran did not engage in combat with the enemy, that he did engage in combat but that the alleged stressor is not combat related, or that the stressor is not related to the fear of hostile military or terroristic activity, then a Veteran's lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain evidence that corroborates his testimony or statements. Id. Service department records must support, and not contradict, the claimant's testimony regarding noncombat stressors. Doran v. Brown, 6 Vet. App. 283 (1994); see also Fossie v. West, 12 Vet. App. 1, 6 (1998). 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 a psychiatric disorder, to include 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. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). This includes weighing the credibility and probative value of lay evidence against the remaining evidence of record. See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana, 24 Vet. App. at 433-34. A lay person is competent to report on the onset and reoccurrence of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). The Board must determine, on a case by case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. See Kahana, 24 Vet. App. at 443 n. 4; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. In this case, the Veteran asserts that he currently has PTSD which is related to, or caused by, his active service. Specifically, he asserts two in-service stressors: (1) that at a rifle range during basic training between August and September 1974 at Ft. Dix, New Jersey, his training exercise partner, H.M., went “berserk” and started firing his weapon at everything around him and the Veteran tackled him and removed his weapon; and (2) during a training exercise at Ft. Eustis, Virginia sometime between June and August 1981, while unloading cargo from the USS Sutton on the James River, the Veteran lost his grip and was left dangling from a cargo net “for what felt like hours” above rough waters at night until he was pulled aboard another boat. See March 2018 Veteran’s statement and Statement in Support of Claim for PTSD; August 2018 Statement in Support of Claim. As an initial matter, the Board finds that the Veteran has a current diagnosis of PTSD that was made in accordance with the DSM-5 criteria. See February 2018 VA Review PTSD DBQ. Next, the Board must determine whether there is credible supporting evidence that the claimed in-service stressors actually occurred. Turning to the evidence, the Veteran’s Record of Assignments shows that he had basic combat training at Ft. Dix, New Jersey beginning August 1974 and that he underwent training at Ft. Eustis, Virginia beginning October 1974. The record also includes orders to attend active duty for training at Ft. Eustis from June to July of 1982. See April 1982 Orders; June 1982 Certificate of Notification. Evaluation Reports indicate that from September 1980 to October 1982, the Veteran’s principal duty title was hatch foreman, and that his duties involved supervising hatch operations to insure the safety of personnel and cargo being loaded and unloaded. See September 1981 Senior Enlisted Evaluation Report; October 1982 Enlisted Evaluation Report. The Veteran’s service treatment records are silent as to any complaints, diagnoses, or treatments for psychiatric issues, and his entrance and separation examination reports are negative for any psychiatric issues. See June 1974 Reports of Medical History and Medical Examination; November 1974 Report of Medical Examination. In a March 2018 buddy statement, L.U. wrote, “I am a friend of [the Veteran], he and I enlisted together on the buddy buddy plan. The incident on the rifle range in basic training did occur, I also witnessed that incident myself it was a freighting (sic) experience and I will never forget it... [The Veteran] also talked to me about the incident that happened aboard the USS Sutton also, [he] and I served together for two years before we were separated.” In a March 2018 Statement signed by eight of the Veteran’s family members and friends, they wrote, “The incident [o]n the [rifle] range happened between [A]ugust and September of 1974 when [he] was in basic at [F]ort [D]ix [N]ew [J]ersey. The second incident occurred at [F]ort Eustis Va. in the summer of 1981 between June and [A]ugust exiting the USS Sutton… [The Veteran] has talked about his past experiences with us his family and a few friends…” In responses received October 2018, the Defense Personnel Records Information Retrieval System (DPRIS) indicated that the National Archives and Records Administration (NARA) were unable to locate the Veteran’s unit records from January to December 1974 and from January to December 1981. Even so, they were able to verify that the Veteran was in an Army Reserve unit assigned to Wilmington, North Carolina during 1974, with basic training taking place at Fort Dix, New Jersey, and that the unit was assigned to Wilmington, North Carolina in 1981. However, they were unable to verify the incident between the Veteran and H.M. at the rifle range in 1974 and noted that there was no documentation confirming that a detachment of personnel was sent to the James River in Virginia in 1981 or that any injuries occurred there. In November 2018, the Veteran submitted a copy of L.U.’s DD-214, which shows that L.U. also had active service from August to December 1974. In February 2019, the Veteran submitted scanned copies of “pages from the Basic training book from Ft Dix.” One page was a list of names which included H.M., the servicemember who the Veteran asserts “went crazy on the [rifle] range,” and another page shows a highlighted circle around a man who the Veteran asserts is H.M. See February 2019 Correspondence and Photographs. On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s claimed stressors actually occurred. While no official military records confirm that the events occurred, the Veteran’s military personnel records show that he underwent basic combat training at Ft. Dix beginning in August 1974, he was stationed at Ft. Eustis in October 1974 and from June to July of 1982, and that his principal duty in June to August of 1981 (the timeframe of the second claimed stressor) was hatch foreman, where he supervised loading and unloading of cargo. See April 1982 Orders; June 1982 Certificate of Notification; September 1981 Senior Enlisted Evaluation Report; October 1982 Enlisted Evaluation Report. Thus, both claimed stressors are consistent with the places, types, and circumstances of the Veteran’s service during the relevant time periods; namely, being at a rifle range during basic training at Ft. Dix from August to September 1974, and unloading cargo off of a ship at Ft. Eustis between June and August 1981. Moreover, L.U., a fellow servicemember who enlisted at the same time as the Veteran, as shown by L.U.’s DD-214, also underwent basic training at Ft. Dix and witnessed the event with H.M. on the rifle range, stating that it was a frightening experience he would never forget. See March 2018 L.U. buddy statement. Additionally, the Veteran’s family members and friends indicated that the Veteran told them about both events. See March 2018 Statement from Veteran’s family and friends. Also, excerpts from “the Basic training book from Ft Dix” show a list of names, including H.M.’s, as well as a photograph of a man who the Veteran asserts is H.M., which tends to substantiate H.M.’s presence at Ft. Dix for basic training. See February 2019 Correspondence and Photographs. The Board has no reason to doubt the credibility of this evidence. Accordingly, with resolution of any doubt in the Veteran’s favor, the Board finds the evidence is at least in equipoise as to whether the Veteran’s claimed stressors actually occurred. Finally, the Board must determine whether there is medical evidence of a causal relationship between the Veteran’s current symptomatology and the specific claimed in-service stressors. In February 2018, the Veteran was provided a VA examination to determine the likely etiology of his claimed PTSD. See February 2018 VA Review PTSD DBQ. The VA examiner was asked to opine whether the Veteran had a diagnosis of PTSD that was at least as likely as not incurred in or caused by his depression during service. The VA examiner indicated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, providing the following rationale: “It is less likely than not that claimant's PTSD is caused by his in-service depression. Depression does not cause PTSD. Claimant experienced two traumas while in the military (e.g. a near drowning and an (sic) rogue attack by a partner on the rifle range) that seem to have caused his PTSD.” See February 2018 VA medical opinion. Thereafter, the VA examiner was asked to clarify her opinion, and she provided an addendum opinion in March 2018. Her addendum opinion was as follows: “Claims file was reviewed. The claimant's Unspecified Depressive Disorder was caused by events in service. Claimant's PTSD was also caused by the same events in service. The depression was most likely an early symptom or manifestation of the full blown PTSD that was to develop fully later. The depression did not cause the PTSD; depression does not meet Criterion A for PTSD and, thus, could not cause it. The traumatic events in service caused the PTSD. The proposed question is ludicrous. I know of no research that purports that depression causes PTSD. Depression, however, can be a manifestation of PTSD.” See March 2018 VA addendum opinion. In July 2019, the Veteran’s private treating psychiatrist, J.P., MD, completed a Review PTSD DBQ and indicated that the Veteran had severe PTSD symptoms with flashbacks and nightmares of “two main events. 1. unloading ship --> almost drowned. 2. Person ran amok at Fort Dix NJ in 1974. (started firing at people).” Dr. J.P. also noted that the incident in service in which the Veteran “almost drowned” has caused him to be unable to go over bridges, especially over water. Based on the foregoing, the Board finds that there is probative medical evidence of a causal relationship between the Veteran’s current symptomatology and his claimed in-service stressors. The VA examiner specifically mentioned the two traumas experienced by the Veteran in service and opined that these events caused his PTSD and unspecified depressive disorder. See February 2018 VA medical opinion; March 2018 VA addendum opinion. Moreover, Dr. J.P., the Veteran’s private treating psychiatrist, found that the Veteran has severe PTSD symptoms of flashbacks and nightmares of his two in-service stressors, and that he is unable to go over bridges due to the event on the ship. See July 2019 private Review PTSD DBQ. For the sake of completeness, the Board acknowledges that in an October 2019 Informal Hearing Presentation, the Veteran, through his representative, argued that “the AOJ failed their responsibility to develop for confirmation of Private [H.M.’s] role in the incident on the rifle range in boot camp” and requested that the Board remand this matter so that additional development could be undertaken. However, as discussed above, after resolving all reasonable doubt in favor of the Veteran, the Board finds there is sufficient credible supporting evidence that the in-service stressors occurred. As such, additional development is unnecessary. As the Veteran has a current diagnosis of PTSD, the evidence is at least in equipoise as to whether the claimed in-service stressors actually occurred, and there is medical evidence of a causal relationship between the Veteran’s current symptomatology and his claimed in-service stressors, service connection is warranted. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304(f). The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel 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.