Citation Nr: 21027590 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 14-06 365 DATE: May 6, 2021 ORDER Service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence of record is at least in equipoise as to whether the Veteran has a current clinical diagnosis of PTSD related to service. CONCLUSION OF LAW The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1964 to October 1966. This matter comes before the Board of Veterans' Appeals (Board) by order of the United States Court of Appeals for Veterans Claims (hereinafter "the Court") in December 2019, which set aside an October 2017 Board decision and remanded the issue on appeal for additional development. The issue on appeal was remanded by the Board in May 2020 and it has since returned for further appellate consideration. Service Connection Laws and Regulations Service connection may be granted for a 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). 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, 1167 (Fed. Cir. 2004). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) (2017) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the 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. PTSD There are specific VA criteria to establish service connection for PTSD: (1) medical evidence diagnosing PTSD; (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f) (2020). A diagnosis of PTSD must be established in accordance with 38 C.F.R. § 4.125 (a) (2020), which provides that all psychiatric diagnoses must conform to the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV or DSM 5). 38 C.F.R. § 3.304 (f) (2020). If a veteran did not engage in combat with the enemy, or the claimed stressors are not related to combat, and the stressor is not related to fear of hostile military or terrorist activity, then the veteran's testimony alone is not sufficient to establish the occurrence of the claimed stressors, and his testimony must be corroborated by credible supporting evidence. Cohen v. Brown, 10 Vet. App. 128 (1997); Moreau v. Brown, 9 Vet. App. 389 (1996); Dizoglio v. Brown, 9 Vet. App. 163 (1996). Furthermore, service department records must support, and not contradict, the claimant's testimony regarding non-combat stressors. Doran v. Brown, 6 Vet. App. 283 (1994). 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 PTSD is a question of fact for medical professionals. Whether the evidence establishes the occurrence of stressors, however, is a question of fact for adjudicators. In the present matter, the Veteran's claim for service connection for an acquired psychiatric disorder is based on his contention that he was retaliated against by his chain of command for whistleblowing. Specifically, during a January 2016 VA examination, the Veteran reported that he was the recipient of multiple instances of racially offensive remarks and hazing, such as a noose being left in the barracks. He also reported that the he was attacked by eight or nine white officers who knocked him unconscious and urinated and defecated on him while he was unconscious. Additionally, the Veteran indicated that he observed secret Ku Klux Klan meetings being conducted by senior officers in the company mess hall, and that, as a result of reporting the incident, he was: demoted; transferred to Vietnam for three weeks; transferred to Korea for two weeks; and then transferred back to Germany where he was placed on house arrest until being separated from service. The Board finds that the Veteran is currently diagnosed with PTSD. See e. g., January 2021 VA psychiatric examination report. As such, a current disability is shown. Regarding the stressor element, the Board notes that if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, in the absence of clear and convincing evidence to the contrary, and provided the claimed stressor is consistent with the places, types, and circumstances of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. For purposes of this paragraph, "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). Although the Veteran's stressor of a physical altercation with 8 Caucasian soldiers has not been corroborated by service records, a VA psychiatrist's opinion nevertheless provided a link between the Veteran's PTSD and his fear of domestic terrorist activity during service. In a January 2021 VA examination, the examiner indicated that the Veteran's stressors regarding witnessing a KKK meeting, being assaulted by 8 white soldiers, and being subjected to racial slurs and threats met criterion 'A' for PTSD. Additionally, the examiner noted that the Veteran's stressors were related to his fear of hostile military or terrorist activity. In a corresponding medical opinion, the examiner stated that the Veteran's reports of assault while in the military and spending a few weeks in Vietnam were "consistent over time" and he had been diagnosed with PTSD by his regular providers. However, the examiner further indicated that an opinion could not be provided, without resorting to mere speculation, as to whether or not the Veteran's current symptoms were related to his military service because his separation examination was silent for psychiatric complaints. Additionally, the Veteran's service records were silent for any behaviors that were consistent with injuries or behaviors that would be typically seen in someone who was physically assaulted. The Board finds the January 2021 VA medical opinion to be of little probative value as it pertains to the question of a nexus. Although the examiner addressed the Veteran's claimed assault, no opinion was provided as to whether the Veteran's PTSD was related to the racial slurs and threats the Veteran's withstood during service. It is highly unlikely that the Veteran's service records in the mid-1960s would include documentation of these racially charged incidents. In an October 2012 letter from a DeKalb CSB licensed professional counselor, it was noted that the Veteran had been participating in the North DeKalb Veterans' Mental Health Outpatient Program since 2011. During his treatment, the Veteran was noted to have shared a number of traumatic incidents that occurred during service. The counselor indicated that she had reviewed the Veteran's statements on his VA form 21-0781a and she confirmed that these were the same traumatic events processed in group therapy. A review of the Veteran's VA forms 0781a (statement in support of claim for service connection for PTSD) includes reports from the Veteran regarding his exposure to traumatic, racially charged threats and slurs during service. In a December 2014 letter from the Vet Center, the social worker noted that the Veteran participated in therapy for his chronic PTSD and depressive symptoms. The social worker indicated that the Veteran had reported recurring and disturbing dreams of his stressful military experience. In a March 2015 clinical report from the DeKalb Community Service Board, it was specially indicated that the Veteran had experienced direct and indirect consequences from military experiences and social injustice. The Veteran's inability to overcome these consequences was found to "contribute" to his psychiatric symptoms. In sum, the Board finds the Veteran's reports both competent and credible that he would have incurred at least some incidents of racism during the 1960s; and that these incidents may have devolved into acts of physical violence. Moreover, the 2021 VA examiner indicated that the Veteran's stressors met criterion 'A' for PTSD and were related to his fear of hostile military or terrorist activity. The Veteran's military traumas have been found to contribute to his current psychiatric symptoms. For these reasons, and resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran is diagnosed with PTSD that is causally related to active service. Thus, service connection for PTSD is warranted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.