Citation Nr: 21012479 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 19-30 368 DATE: March 4, 2021 ORDER Service connection for an acquired psychiatric disability, characterized as posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is at least as likely as not that he has PTSD that is related to his active service. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1953 to June 1955, to include service in the Republic of Korea. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision. In July 2020, the Board remanded the matter for further development. While the Veteran originally sought service connection for PTSD, the Board has construed the claim more broadly to encompass any acquired psychiatric disorder. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Service Connection—Psychiatric Disability, to Include PTSD Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 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 requires competent evidence of (1) a current disability; (2) the incurrence or aggravation of a disease or injury during service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) medical evidence of a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a) (i.e., Diagnostic and Statistical Manual for Mental Disorders); (2) credible supporting evidence that the claimed in-service stressor occurred; and (3) medical evidence of a link between current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f). When the claimed in-service stressor is related to the Veteran’s “fear of hostile military or terrorist activity,” the following shall be demonstrated to establish service connection for PTSD: 1) the claimed stressor is consistent with the places, types and circumstances of the Veteran’s service; 2) a VA psychiatrist or psychologist, or contract equivalent, confirms the claimed stressor is adequate to support a diagnosis of PTSD; and 3) the Veteran’s symptoms are related to the claimed stressor. 38 C.F.R. § 3.304 (f)(3). The regulatory change eliminated the requirement for corroborating evidence of the claimed in-service stressor if it is related to the Veteran’s “fear of hostile military or terrorist activity.” “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). Here, the Veteran essentially asserts that he has PTSD due to his combat service in Korea. In a January 2017 statement in support of the claim for service connection for PTSD, the Veteran indicated that he engaged in combat with the enemy and that his eyes were injured by a flamethrower. Regrettably, the Veteran’s service treatment and personnel records were destroyed in a fire at the National Personnel Records Center. However, the available service personnel records show that the Veteran served in the Republic of Korea during the Korean conflict. An April 2016 patient discharge form from a private medical center reflects a principle diagnosis of depressive disorder. No other private medical records have been obtained. At a May 2017 VA examination, the Veteran reported being a gunner in Korea on the front line and being in constant combat during the beginning of the conflict. He stated that, during one battle, his eyes were damaged by a flamethrower. The examiner stated that the Veteran reported symptoms characteristic of a trauma and stressor related disorder due to combat stressors from Korea related to his fear of hostile military or terrorist activity. However, the examiner concluded that the Veteran did not meet the diagnostic criteria for PTSD. A July 2017 VA medical record reflects diagnoses of PTSD, a depressive disorder, and dementia by a private physician about a year earlier. The Veteran was reported to be doing better with medication. The Veteran reported seeing fellow soldiers die in battle and being in the middle of one battle when he was hit with a flamethrower and his eyes were damaged. Examination revealed diagnoses of an other specified trauma and stressor related disorder, a depressive disorder, and cognitive disorder. A December 2018 VA medical record shows diagnoses of dementia and PTSD. In a May 2019 letter, the Veteran’s VA psychiatrist stated that the Veteran has a depressive disorder, PTSD, and dementia. The psychiatrist included a May 2019 treatment record indicating that he still meets the diagnostic criteria for PTSD. At a September 2019 VA examination, the Veteran reported having a problem with his eyes during service but denied combat or any traumatic events during service. The examiner stated that, while the Veteran may have met the diagnostic criteria for PTSD in the past, he did not currently meet the criteria. Rather, the examiner diagnosed the Veteran with a trauma- and stressor-related disorder due to combat stressors from Korea related to his fear of hostile military or terrorist activity. The examiner concluded that it is at least as likely as not that the Veteran’s trauma- and stressor-related disorder was incurred in, or caused by, in-service combat-related stressors. An August 2020 VA medical record shows that the Veteran’s PTSD and depressive disorder were stable. Given the above, while two VA examiners indicated that the Veteran did not meet the diagnostic criteria for PTSD, his VA treating psychiatrist indicated that he did, and a VA medical record since both examinations continues to show treatment for PTSD. The Board also notes that the Veteran’s dementia appears to have masked some of the PTSD symptoms that he once had. Resolving reasonable doubt in the Veteran’s favor, the Board finds that it is at least as likely as not that he has had PTSD during, or approximate to, the pendency of the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Veteran’s in-service stressor of being injured by a flamethrower during combat has not been corroborated, the Board observes that the Veteran served in Korea during the Korean conflict and has reported combat stressors in general. As such, he has reported stressors that are generally related to a fear of hostile military activity. Moreover, both VA examiners have opined that the Veteran’s psychiatric disorder is related to his fear of hostile military activity, and the record shows that the diagnosis of PTSD in the VA medical records is likewise based in part on his fear of hostile military activity. Thus, again resolving reasonable doubt in the Veteran’s favor, the Board finds that his PTSD is at least as likely as not related to active service. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Accordingly, the Board concludes that service connection for PTSD is warranted. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. W. Kim, 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.