Citation Nr: 21007779 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-09 856 DATE: February 10, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. The appeal concerning the propriety of the reduction of the evaluation for the residuals of prostate cancer, having been withdrawn, is dismissed. FINDINGS OF FACT Resolving all doubt in the Veteran's favor, the currently diagnosed PTSD was incurred during active military service. At the March 2019 Board hearing, prior to the promulgation of a decision in the present appeal, the Veteran withdrew the issues of an the propriety of the reduction of the evaluation for the residuals of prostate cancer. CONCLUSIONS OF LAW The criteria to establish service connection for PTSD, are approximated. 38 U.S.C. §§ 1131, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.304, 3.310. The criteria for the withdrawal of a substantive appeal have been met regarding the appeal for an propriety of the reduction in the evaluation for the residuals of prostate cancer. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1968 to December 1970. He was awarded the Bronze Star, Vietnam Campaign Medal, and Vietnam Service Medal, among other decorations, for this service. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2014 (PTSD)and July 2015 (prostate cancer) rating decisions by the Department of Veterans Affairs (VA) Regional Office. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204. Here, the Veteran and his representative withdrew this issue of entitlement to an increased evaluation for the residuals of prostate cancer on the record at the March 2019 videoconference hearing. Accordingly, there remains no allegation of errors of fact or law for appellate consideration, and the appeal of this issue is dismissed. Regarding the claim for service connection for PTSD, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Further, given the favorable outcome in this decision that represents a full grant of the issues on appeal, further explanation of how VA has fulfilled the duties to notify and assist is not necessary. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). 1. Entitlement to service connection for PTSD is granted. The Veteran contends that service connection is warranted for the currently diagnosed PTSD. After review of the lay and medical evidence, the Board agrees and finds that service connection is warranted for PTSD. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air 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 of the evidence, including that pertinent to service, establishes that the disease was incurred in active service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between current symptomatology and an in-service stressor. VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a). The Veteran's service treatment records are silent for any mental health disabilities. On his December 1970 separation examination, the Veteran indicated he was in good health and denied any mental health issues. In January 2014, the Veteran filed a claim for service connection for PTSD. In May 2014, he underwent a VA examination to determine the nature and etiology of any mental health disabilities. The Veteran reported that during his service in Vietnam he experienced loud explosions from artillery and a fear of being overrun by the enemy. The VA psychologist found the stressor met the criterion A and was related to a fear of hostile military activity. However, the VA psychologist found the Veteran’s reported symptoms did not meet the criteria for a mental disorder diagnosis. In October 2014, the Veteran underwent a private examination to determine the nature and etiology of any mental health disabilities. The private physician diagnosed the Veteran with posttraumatic stress disorder and opined that it clearly appeared to be related to his military experiences. He added that the Veteran’s current diagnoses were attributed directly to his military service. In January 2016, the Veteran underwent an additional VA examination to determine the nature and etiology of any mental health disabilities. The Veteran again reported that during his service in Vietnam he was exposed to mortar attacks nad witnessed dead bodies. The VA psychologist again found the stressor met the criterion A and was related to a fear of hostile military activity. However, the VA psychologist also found the Veteran’s reported symptoms did not meet the criteria for a mental disorder diagnosis. In March 2019, the Veteran underwent a private examination to determine the nature and etiology of any mental health disabilities. The private physician diagnosed the Veteran with posttraumatic stress disorder and opined that it clearly appeared to be related to his military experiences. He added that the Veteran’s current diagnoses were attributed directly to his military service. First, although the Veteran's service records do not document evidence of the claimed stressors during active duty service, the Veteran's lay reports of in-service exposure to mortar fire are commensurate with his duties during service. Additionally, the Veteran was awarded a Bronze Star Medal for his active duty service, specifically for meritorious service, not involving participation in aerial flight, in connection with military operation against a hostile force in the Republic of Vietnam. Based upon 38 U.S.C. § 1154(b) his account of in-service stressors during service in a combat zone are presumed competent and credible. Accordingly, the Veteran's lay statements of in-service exposure to mortar fire and witnessing dead bodies are competent evidence of the in-service stressor. Turning to the medical evidence, there are four medical opinions of record. The May 2014 and January 2016 VA examiners found that the Veteran did not have a current diagnosis of PTSD. The October 2014 and March 2019 private examiners diagnosed the Veteran with PTSD and indicated that it was related to the Veteran’s military service. As such, the Board finds that resolving reasonable doubt in the Veteran's favor, it is at least as likely as not that the Veteran's PTSD was incurred in active service. Therefore, service connection for PTSD is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. Specifically, the Board could seek further examination to clarify and definitively opine on the nature and etiology of any current mental health disabilities or have a VA examiner specifically opine as to whether the PTSD is related to exposure to hostile military or terrorist activity. The Board could also order further development of the record and a more defined records search. However, under the law, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In this case, although the VA examinations concluded that the Veteran did not have a currently diagnosed mental health disability, the private examiner twice diagnosed the Veteran with PTSD. As these diagnoses were made by psychologist the Veteran has a current diagnosis during the appeal period. See Cohen v. Brown, 10 Vet. App. 128, 140 (1997) (holding that mental health professionals making diagnoses 'are presumed to know the DSM requirements applicable to their practice and to have taken them into account.'). Furthermore, VA examiners also opined the stressor were related to a fear of hostile military activity. While the official diagnosis was not by a VA examiner, the Board notes that the personnel records clearly confirm he was stationed in Vietnam and he received awards for his meritorious service in connection with military operation against a hostile force. Thus, the Board finds the evidence generally corroborates the reported stressor. Lastly, the evidence links the current symptoms to service. In sum, the Board finds that the evidence of record is at least in relative equipoise. That is, there is at least an approximate balance of evidence both for and against the actual occurrence of the in-service stressor. Under such circumstances, all reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Because a diagnosis of PTSD has been offered, and because competent and credible supporting evidence that the in-service stressor occurred has been offered, service connection for PTSD is warranted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Teague, 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.