Citation Nr: 21022109 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-23 340 DATE: April 14, 2021 ISSUE Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). ORDER Entitlement to service connection for PTSD is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Veteran’s PTSD is related to his active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C. §§ 1101, 1110 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1976 to October 1980. This matter is before the Board of Veterans 'Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA)Regional Office (RO). This case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c) (2018). Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). The Veteran asserts that he has PTSD as a result of three in-service stressors: (1) the death of his twin brother following a robbery and assault during service, (2) the death of a friend who shot himself during service and (3) his response to a helicopter crash involving multiple casualties due to his Military Occupational Specialty (MOS) as a firefighter. See May 24, 2018 Statement in Support of Claim, VA Form 21-0781; See also May 10, 2020 Form 9 re: twin brother. To prevail on a direct service connection claim, there must be competent evidence of (1) a current disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). The criterion for establishing service connection for PTSD is slightly different. In such an instance, three elements must be present: (1) A current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (2018); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2018); Cohen v. Brown, 10 Vet. App. 128 (1997). A disability may be service connected on a secondary basis if it is proximately due to or the result of a service-connected disease or injury; or, if it is aggravated beyond its natural progress by a service-connected disease or injury. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.310 (a), (b). The Board is required to assess the credibility and probative weight of all relevant evidence, and may consider factors such as facial plausibility, bias, self-interest, and consistency with other evidence of record. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (Greene, J., concurring in part and dissenting in part) (noting that the Board has the duty to assess credibility and probative weight of evidence); see, Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007) (affirming that the Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board, as fact finder, is obligated to, and fully justified in, determining whether lay evidence is credible in and of itself, i.e., because of possible bias, conflicting statements, etc.). The Court has also held that contemporaneous records are more probative than history as reported by a Veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Effective March 19, 2015, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM-IV, and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 80 Fed. Reg. 53,14308 (March 19, 2015). The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. The Veteran's claim was pending before the RO after August 4, 2014. Service connection may also 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 service. 38 C.F.R. § 3.303 (d). Discussion This case turns on whether there is credible supporting evidence that the Veteran’s claimed in-service stressors occurred. As will be discussed in greater detail below, a September 2020 VA examiner concluded that the Veteran has a PTSD diagnosis that conforms to DSM-5 criteria, with no other mental health disorder. See September 22, 2020 Initial PTSD Examination at pgs. 1-2. The Veteran's service treatment records are negative for complaints or findings of a psychiatric disorder. In-service stressors The Veteran states that during his first year in the Army, his twin brother, who was also on active duty in the army, was robbed and assaulted. The Veteran states that his brother died as a result of this assault. The Veteran states that even though he was assigned a different unit at the time of his passing, he became violently ill during the time of his brothers’ death, even though in different locations. The Veteran states that his brother died as a result of this assault. (Stressor #1.) The Veteran also asserts that he and two others were at the barracks. His friend (S.F.) was drunk and aimed a gun at him and others. Then, his friend put the gun to his head and said, “there is nothing in this gun” and he shot himself in the head. (Stressor number #2.) Further, the Veteran asserts that as part of his MOS, he responded to a Helicopter Crash between October 1, 1977 – December 1, 1977 at the Tack Runkle, Airfield at Fort Rucker, Alabama. The Veteran states that the crash entailed 5 casualties. The Veteran states that he did not know them personally, but there were dead on arrival and that the crash happened about a mile from the airfield. See May 24, 2018 VA Form 21-0781, Statement in Support of Claim for PTSD; May 26, 2020 Correspondence; See also March 24, 2021, Informal Hearing Presentation. (Stressor #3.) The Board notes that the Veteran’s Military Occupational Specialty (MOS) was Firefighter, 3 years and 7 months. The record also shows that the Veteran was assigned to the 597th Eng. Detachment at the time of the helicopter crash. See DD-214. With regards to stressor number one, the Veteran has submitted multiple newspaper clippings (including an obituary) that report the death of private M.P.K., and possible homicide, resulting from multiple skull fractures, three miles from a military base in May 1977. See May 12, 2020 Correspondence (Homicide Is Indicated in Death of Pvt. K.; Police Probe Death of Cherry Valley GI; Private M.P.K, Found Dead at Military Post—Obituary.) See also, DD 1300, May 25, 1977 Report of Casualty (M.P.K). With regards to the stressor number two: A September 2018 formal finding from the Defense Personnel Records Information Retrieval System (DPRIS) states that “we have coordinated our research with the National Archives and Records Administration located in College Park, Maryland. They were unable to locate copies of unit records submitted by the 597th Engineer Detachment (Eglin AFB, FL) for the January – December 1980 time period. However, we researched the US Army casualty information and historical information available to this office. The historical information documents that a 597th Engineer Detachment was assigned to Eglin AFB during 1980, where on January 7, 1980, SP4 S.L.F., assigned to the 1st Battalion, 29th Infantry (Eglin AFB), accidently shot himself in the head and expired. In regard to this incident, there may be a criminal investigation report filed on this incident which may document the Veteran involvement as a witness.” See September 25, 2018 Correspondence. With regards to stressor number three: A March 2018 formal finding from the Defense Personnel Records Information Retrieval System (DPRIS) states that “we have coordinated our research with the National Archives and Records Administration located in College Park, Maryland. They were unable to locate copies of unit records submitted by the 91st Engineer Detachment (91st Eng. Det) or the 46th Engineer Battalion, the higher headquarters of the 91st Eng. Det, Fort Rucker, Alabama, for the January to December 1977 time period. We did review other historical documents that are available to this agency, to include the casualty data, and we were able to document that a helicopter crashed one mile off the airfield at Fort Rucker, Alabama during 1970. We are able to document two helicopter accidents resulting in two service personnel injured at Fort Rucker in 1977. See March 13, 2020 Correspondence. VA Examination The Veteran was afforded a September 2020 Initial PTSD examination to determine the etiology of his psychiatric disability. As noted above, the examiner found that the Veteran had a PTSD diagnosis that conforms to DSM-5 criteria. The examiner concluded that no other mental health diagnosis was found. See September 22, 2020 Initial PTSD Examination at pgs.1-3. In this September 2020 PTSD examination, the examiner recorded the Veteran’s stressors. Stressor #1: The Veteran’s identical twin brother both enlisted together. Brother was murdered while he was being robbed 3 days after their 18th birthday on May [REDACTED] at 2 am. The Veteran learned of this from his father by phone. The examiner found the Veteran stressor was adequate to support the diagnosis of PTSD. Id. at 7. Stressor #2: The Veteran was with a friend S., a fellow servicemember, in barracks. The Veteran went to barracks to have a beer with his friend and his friend's friends. States that S. pulled out a .22 pellet gun, "aimed it at one of the other guys and pulled the trigger, it was empty. He aimed it at me and pulled the trigger, and nothing happened." States that Steve then put the gun to his head saying, "there's nothing in this gun" and pulled trigger and shot himself. The Veteran states he was supposed to be at his post, "the other 2 guys said I was not there" so that the claimant would not get court martialed. The Veteran was supposed to be at the fire department. The Veteran ran back to his fire duty station and then responded with others to the call, where Steve was shot. The examiner found the Veteran second stressor was adequate to support the diagnosis of PTSD. Id. Stressor #3: As a firefighter, went to multiple car accidents where people were killed on highways. This included in AL and AK, both on and off post. The examiner found that the Veteran’s third stressor was adequate to support the diagnosis of PTSD. Id. at 8. The examiner explained that for this Veteran Criterion A (exposure to actual or threatened a) death, b) serious injury, c) sexual violation) was met by witnessing, in person, the traumatic event(s) as they occurred to others; Learning that the traumatic event(s) occurred to a close family member or close friend; cases of actual or threatened death must have been violent or accidental; or, experiencing repeated or extreme exposure to aversive details of the traumatic event(s) (e.g., first responders collecting human remains; police officers repeatedly exposed to details of child abuse); this does not apply to exposure through electronic media, television, movies, or pictures, unless this exposure is work related. Id. at pg. 8. The Board observes that the September 2020 VA examiner found the all three stressors contributed to the Veteran’s PTSD diagnosis. Id. at pgs. 7-9. The Board observes that the Veteran did not discuss the events of the helicopter crash as an in-service stressor. Psychologist The Veteran submitted October 2019 correspondence from a licensed psychologist who reported that “while the veteran was in service as a young man, he suffered the tragic loss of his identical twin brother (who was simultaneously assigned to the same base) under violent circumstances. The loss was traumatizing for him at the time, and from which he has never fully recovered.” The licensed psychologist reported that the Veteran began meeting with him approximately 20 years ago and began discussion of that event. The psychologist reported that I have seen periodically since that time. I have concluded that the shock and sadness he has continued to experience exceeds the usual grief reaction and is a Post-Traumatic Stress Disorder. His symptoms have included flashbacks of the day of the loss, intrusive pre-occupation regarding the circumstances of his brother’s death, hypervigilance and emotional lability/reactivity, which at times has placed him at risk.” The licensed psychologist also reported that “exacerbating the stress of his brother’s death, he also witnessed while in service, a fellow soldier shoot himself in the head. Supported by the counseling he has received and extremely self-sufficient and independent by nature, this Veteran chose not to make application earlier. However, with advancing age his ability to manage these stress reactions has further diminished. The Veteran has been and is now, in my opinion suffering from Post-Traumatic Stress Disorder. See October 22, 2019 Correspondence, (J.M.M., Ed. D.) American Academy of Experts in Traumatic Stress/M, American College of Forensic Examiners/Diplomate. The Board observes that while the licensed psychologist did not indicate that DSM-5 criteria were applied in this diagnosis, the licensed psychologist did link this Veteran’s PTSD diagnosis to an in-service stressor (Stressors # 1& 2), which subsequently have been found to be adequate to support the diagnosis of PTSD under DSM-5 criteria. See September 2020 VA PTSD examination, pgs. 7-8. Additionally, the Board observes that this report regarding his in-service stressor was made to a medical professional (licensed psychologist) at a time when he was not seeking requesting compensation or other benefits from VA for this condition. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803(4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73. Primary care physician The Veteran also submitted correspondence from his primary care physician in January 2020 who stated, in pertinent, that the Veteran has been under his medical care for the last 20 years. The physician stated that he had been “aware of the Veteran’s persistent signs and symptoms consistent with Post Traumatic Stress Disorder.” The physician stated that the Veteran “continues to require medication treatment to help with anxiety and panic symptoms related to his condition.” The physician also stated that the Veteran “continues to receive regular care and counseling from his licensed psychologist that he has seen for over 20 years. It is clear that the Veteran’s PTSD dates back to a number of traumatic events that that occurred during this time in active service.” See January 19, 2020 Correspondence (D.R.M., M.D.). Analysis As noted above in this decision, this case turns on whether there is credible supporting evidence that the in-service stressor occurred. With regards to stressor number one, the Board is cognizant that the Veteran did not personally witness his brother’s assault and ultimate death, however in the September 2020 PTSD VA examination, the examiner indicated that this Veteran’s stressor was adequate to support the PTSD diagnosis as the Veteran learned that a traumatic event (s) occurred to a close family member (twin brother). The examiner explained that cases of actual or threatened death must have been violent or accidental. See September 2020 PTSD VA examination, pg. 8. What’s more, the Veteran submitted newspaper clippings that reflect a historical account of that event during service. See May 12, 2020 Correspondence (Homicide Is Indicated in Death of Pvt. K.; Police Probe Death of Cherry Valley GI; Private M.P.K, Found Dead at Military Post—Obituary.) See also, DD 1300, May 25, 1977 Report of Casualty (M.P.K). With regards ot stressor number two, the Board observes that a September 2018 formal finding from the Defense Personnel Records Information Retrieval System (DPRIS) states that historical information documents that a 597th Engineer Detachment was assigned to Eglin AFB during 1980, where on January 7, 1980, SP4 S.L.F., assigned to the 1st Battalion, 29th Infantry (Eglin AFB), accidently shot himself in the head and expired. In regard to this incident, there may be a criminal investigation report filed on this incident which may document the Veteran involvement as a witness.” See September 25, 2018 Correspondence. With regards to stressor number three, the Board observes that a March 2018 formal finding from the Defense Personnel Records Information Retrieval System (DPRIS) states that “we did review other historical documents that are available to this agency, to include the casualty data, and we were able to document that a helicopter crashed one mile off the airfield at Fort Rucker, Alabama during 1970. We are able to document two helicopter accidents resulting in two service personnel injured at Fort Rucker in 1977. See March 13, 2020 Correspondence. The Board is cognizant that the Veteran stated that the 5 casualties resulted from a helicopter crash between October 1, 1977 – December 1, 1977 at the Tack Runkle, Airfield at Fort Rucker, Alabama. See May 24, 2018 VA Form 21-0781, Statement in Support of Claim for PTSD. While the Board is cognizant that it is plausible for the Veteran to witness and respond to a helicopter crash, and fail to recount the exact number of injuries or casualties resulting from that crash, the VA psychologist did not link the Veteran’s helicopter crash to his PTSD, because it was not reported to the psychologist. See September 2020 VA examination pg. 8 re: car accidents. After careful review of the evidence of record (including newspaper clippings re: twin brother’s death & possible homicide during service; findings from DPRIS corroborating in-service events, specifically as it relates to the death of a fellow service member; correspondence from a licensed psychologist documenting in-service stressors (stressor #1 & 2) at a time the Veteran was not seeking VA compensation), in conjunction with the September 2020 VA Initial PTSD examination, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s in-service stressors (stressor #1 & 2) have been adequately corroborated by credible supporting evidence. Thus, an in-service stressor is established. The evidence is at least in equipoise as to whether the Veteran's PTSD is related to his active duty service. (Continued on next page.) The criterion for establishing service connection for PTSD consists of three elements (1) A current medical diagnosis of PTSD in accordance with 38 C.F.R. § 4.125 (a) (2018); (2) medical evidence of a causal nexus between current symptomatology and a claimed in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f) (2018); Cohen v. Brown, 10 Vet. App. 128 (1997). Given that the Veteran’s in-service stressors (Stressors #1 & 2) have been adequately corroborated and there is a diagnosis of PTSD based on such stressors, the Board finds that service connection is warranted for PTSD. Accordingly, after resolving all doubt in favor of the Veteran, service connection for PTSD is granted. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.