Citation Nr: 21072966 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 16-56 029 DATE: December 7, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's PTSD is a result of in-service combat stressors. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1985 to April 1993. This case initially came before the Board of Veterans' Appeals (Board) from a March 2013 rating decision, which, among other things, denied service connection for PTSD. In June 2013 the Veteran filed a notice of disagreement (NOD) and in September 2016 the RO issued a statement of the case (SOC). In November 2016 the Veteran filed a substantive appeal (via VA Form 9) In July 2019 the Board remanded the Veteran's claim for further evidentiary development. As the benefit sought is being granted in full, consideration of whether the agency of original jurisdiction (AOJ) complied with the Board's remand instructions is unnecessary. PTSD Service connection will be granted if the evidence demonstrates that current disability resulted from an injury or disease incurred in 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) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). There are particular requirements for establishing service connection for 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). Service connection for PTSD generally requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (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). A March 2015 VA examiner diagnosed the Veteran with unspecified anxiety disorder and alcohol and cannabis use disorder. An August 2016 VA psychiatrist diagnosed the Veteran with PTSD. Thus, a current disability has been demonstrated. The Veteran contends that his PTSD is related to in-service stressors and that he engaged in combat with enemy forces during Operation Desert Storm. A determination that a veteran engaged in combat with the enemy may be supported by any evidence which is probative of that fact, and there is no specific limitation of the type or form of evidence that may be used to support such a finding. See VAOPGCPREC 12-99 (October 18, 1999) (combat determination should be made on a case by case basis where there is no medal specifically indicating combat service). Evidence submitted to support a claim that a veteran engaged in combat may include the veteran's own statements and an "almost unlimited" variety of other types of evidence. Gaines v. West, 11 Vet. App. 353, 359 (1998). Receiving enemy fire or firing on an enemy can constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264 (2004). The Veteran's military personnel records indicate that he was stationed in Saudi Arabia and served in Operation Desert Shield/Storm. Also, the Veteran's military personnel records indicate that he worked as a Satellite Communications Terminal Operator while serving overseas and was awarded the Liberation and Defense of Kuwait Medal. Taken together, these records, combined with his lay statements regarding coming under enemy fire, indicate that the Veteran likely participated in combat operations. 38 C.F.R. § 3.102 (benefit of the doubt doctrine applies to all aspects of a claim). Thus, the Board finds that the Veteran engaged in combat with the enemy. In a July 2011 letter, the Veteran stated that while stationed overseas he was exposed to nerve gas and witnessed traumatic situations such as Iraqi troops being blown up. In a June 2013 letter, the Veteran stated that he saw mutilated bodies of dead Iraqi troops and smelled burned flesh when marching into Iraq. The Veteran was assigned to pick up body parts and put them in bags. The Veteran also stated that his unit encountered small arms fire from Iraqi snipers. In a January 2021 Statement in Support of Claim for PTSD (VA Form 21-0781) the Veteran stated that a bomb detonated while he was clearing ammunition from a depot. 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 the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see Cohen v. Brown, 10 Vet. App. 128 (1997); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). In the present case, the evidence establishes that the Veteran engaged in combat with the enemy and his claimed stressors are related to his combat experience. The Veteran is competent describe his psychiatric symptoms and history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Further, on the February 1993 separation examination report the physician noted the Veteran experienced depression or excessive worry which corroborates his reporting. As there is nothing in the Veteran's record to doubt his credibility, and the claimed stressors are related to combat and consistent with the circumstances of his service, the Veteran's lay testimony establishes the occurrence of the claimed in-service stressors. The remaining question is whether the Veteran's PTSD is related to his claimed military combat stressors. A March 2015 VA psychologist opined that it does not appear that the Veteran meets the DSM-V criteria for a diagnosis of PTSD, however, diagnosed him with unspecified anxiety disorder and unspecified alcohol and cannabis use disorder. The VA psychologist explained that the Veteran does not meet the full criteria for PTSD based on a structured interview assessing for frequency, severity, and duration of symptoms and linking those symptoms to military trauma. The VA psychologist explained that the Veteran's records reflect intercurrent stressors related to his work and finances that have impacted his mental health. The VA psychologist also opined that she would have to resort to mere speculation as to determine whether the Veteran's unspecified anxiety disorder is related to his military service. An August 2016 VA physician diagnosed the Veteran with PTSD due to his core symptoms, longitudinal history, and clinical judgment. The VA physician noted that the Veteran has had ongoing PTSD related symptoms since his military experiences in Operation Desert Storm. The VA physician thus diagnosed the Veteran with PTSD based on his military service. Given the diagnosis of PTSD based on the Veteran's military service, this is an implicit nexus opinion linking the PTSD to the in-service combat stressors given the context in which the diagnosis was made. See 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). Thus, the August 2016 VA opinion is entitled to substantial probative weight. A January 2020 VA psychiatrist opined that the Veteran did not meet the DSM-V criteria for a diagnosis of PTSD, however, diagnosed him with unspecified anxiety disorder and unspecified alcohol-related disorder. The VA psychiatrist explained that the Veteran endorsed different stressors during his lifetime such as being a victim of physical/emotional abuse as well as sexual abuse. As to his combat stressors, the Veteran reported to the VA psychiatrist that his combat experience was short and largely undocumented and the VA examiner reiterated this in her rationale. The VA psychiatrist attributed the Veteran's anxiety to his relationship with his son and retirement and job security based on his reporting. As to the Veteran's alcohol use disorder, the VA psychiatrist explained that "this is genetically influenced and there is a necessary component of gene-by-environment interaction." As the VA examiner appeared to rely, in part, on the lack of documentation for her conclusion, the opinion is inadequate as this is precisely the type of adverse inference that the combat rules were designed to prevent. Reeves v. Shinseki, 682 F.3d 988, 998 (Fed. Cir. 2012) (noting that Congress enacted the combat statute because of its concern that combat veterans faced "major obstacle[s]" when seeking to assemble the medical records to support their claims). The Veteran is competent to report about the circumstances of his military service, his current symptoms, and history of symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Taken together, the Board finds the implicit nexus opinion provided by the August 2016 VA psychologist and the Veteran's lay statements to be equal in probative weight to the negative nexus opinion provided by the March 2015 VA psychologist. The evidence is thus at least evenly balanced as to whether the Veteran has PTSD that is related to in-service combat stressors. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board notes that the benefit granted herein is service connection for PTSD. Although the Veteran has also been diagnosed as having other psychiatric disabilities during the claim period, including unspecified anxiety disorder and unspecified alcohol and cannabis use disorder, there is no evidence to distinguish between all of the symptoms of the Veteran's psychiatric disabilities. Therefore, a separate decision as to entitlement to service connection for psychiatric disability other than PTSD is unnecessary. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006) (explaining that the Secretary must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James R. Miller, 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.