Citation Nr: 21040959 Decision Date: 07/07/21 Archive Date: 07/07/21 DOCKET NO. 16-39 541 DATE: July 7, 2021 ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). ORDER Entitlement to service connection for post-traumatic stress disorder (PTSD) is granted. FINDINGS OF FACT 1. The Veteran has confirmed service in the Republic of Vietnam during a period of war. 2. The Veteran has a confirmed diagnosis of post-traumatic stress disorder under 38 C.F.R. § 4.125 (a) made by a VA psychologist. 3. The Veteran was exposed to fear of hostile military and/or terrorist activity while serving in the Republic of Vietnam. 4. The Veteran's confirmed diagnosis of post-traumatic stress disorder has been attributed by competent evidence to the Veteran's exposure to the fear of hostile military and/or terrorist activity. CONCLUSION OF LAW The criteria for entitlement to service connection for post-traumatic stress disorder (PTSD) have been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304(f)(3), 4.125(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. Following the rating decision denying entitlement to service connection for post-traumatic stress disorder (PTSD), the Veteran filed a timely Notice of Disagreement (NOD) in May 2015. The Veteran was issued a statement of the case in July 2016, and he filed a timely VA Form 9 in August 2016. In the Veteran's Form 9, he requested a Board Hearing. The Veteran's claim was certified to the Board in February 2018. The Veteran was scheduled for a Board hearing before the undersigned Veterans Law Judge in June 2021, which he did not attend. Having said that, the Board finds that the Veteran's claim is appropriately docketed and, more importantly, proceeding with the disposition of this claim would not be prejudicial to the Veteran. As such, the Veteran's claim for entitlement to service connection for PTSD is currently before the Board. Entitlement to service connection for post-traumatic stress disorder (PTSD). The Veteran has claimed that his PTSD is due to his active duty service. These arguments were generally repeated in a statement submitted by the Veteran's Representative in February 2018. To establish entitlement to service connection for PTSD, a Veteran must establish (1) medical evidence establishing a clear diagnosis of PTSD under 38 C.F.R. § 4.125 (a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between current symptoms and a claimed in-service stressor. 38 C.F.R. § 3.304(f). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In deciding the Veteran's claim, 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 the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. As an initial matter, the Board finds that the relaxed criteria for service connection under 38 C.F.R. § 3.304(f)(3) is most applicable for determining the Veteran's claim. That regulation states that, effective July 13, 2010, if a stressor claimed by a veteran is related to that 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 a 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 that veteran's service, a veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(3). To begin, the Veteran's DD-214 confirms that he had over eleven months of foreign service in Vietnam, and that he has earned the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. Thus, the Board has confirmed that the Veteran has active duty service within the Republic of Vietnam during a period of war. 38 C.F.R. § 3.304(f)(3). Next, the Veteran's claims file includes a VA examination from September 2014. During the examination, the Veteran was seen in person, and a VA psychologist confirmed that the Veteran had a current diagnosis of PTSD. The examiner also noted that the diagnosis was made using the current DSM-5. A follow up VA medical opinion from November 2014 also notes that the Veteran has "currently diagnosed PTSD." Further VAMC records also indicate that the Veteran has received treatment for his current diagnosis of PTSD. See VAMC Notes from August 2013, March 2014, April 2014, May 2014, June 2014, and July 2014. As such, the Board has confirmed that the Veteran has a current diagnosis of PTSD under 38 C.F.R. § 4.125 (a). 38 C.F.R. § 3.304(f)(3). Turning to the next element of service connection under 38 C.F.R. § 3.304(f)(3), the Veteran has submitted three possible stressors that he believes may have caused his current diagnosis of PTSD, and he has argued that each demonstrates that he was exposed to fear of hostile military and/or terrorist activity. First, the Veteran wrote that while on active duty he slept next to a man who "woke from his sleep having nightmares, grabbed his gun and began shooting," which resulted in him witnessing the death of his "coworker and good friend." See May 2015 NOD. Second, the Veteran wrote that following a firefight, his "fellow troops [went] out to check for the dead/wounded soldiers," and those enemy troops that "were not killed but severely wounded were shot dead and killed on the spot." See April 2015 VA 21-0781, Statement in Support of Claim for PTSD. Third, the Veteran indicated that he was "sent into a village and there was a bunch of bodies that did not have any heads on them. They'd gone through there and cut the heads off these children and left the bodies lying there." See September 2014 VA examination. These Board additionally notes that these lay statements are generally consistent over the duration of the Veteran's claim. The Veteran is competent to report that which he experienced, such as those experiences associated with his service. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Following the Veteran listing his claimed stressors, the RO sent a request for verification to the Joint Services Records Research Center (JSRRC) in March 2015. The JSRRC conducted a review of the first two listed stressors only, specifically, the stressor with the fellow soldier shooting the Veteran's friend, and the stressor of his fellow soldiers killing the severely wounded enemy troops. For each of these stressors, the JSRRC could not confirm that they took place and thus could not be conceded. The final stressor, involving entering a village to see headless bodies, was not addressed. In consideration of the stressors provided by the Veteran, the Board finds that the third stressor is that most directly related to his fear of hostile military/terrorist forces while service in the Republic of Vietnam. 38 C.F.R. § 3.304(f). The first listed stressor involves a threat of being shot by a fellow service member, after they woke up from a nightmare. That service member is not purported to be a member of a hostile military/terrorist force. The second stressor involves the Veteran witnessing enemy soldiers, who were severely wounded, being shot dead and killed on the spot. While that fear may be arguably linked to a fear of hostile/terrorist force, the Veteran conceded that these individuals were already wounded. The third stressor however involves the Veteran entering a village and fearing for his life based on the terrorist acts of a hostile military force cutting off the heads from bodies, many of which were children. The Board finds that this stressor is most directly related to his fear of hostile military/terrorist forces while serving in the Republic of Vietnam during a time of war. 38 C.F.R. § 3.304(f). Therefore, the final element for entitlement to service connection under 38 C.F.R. § 3.304(f) is that the Veteran's diagnosis must be linked by a VA psychologist to that fear of hostile military/terrorist force, septically to that third stressor he has described. As noted above, the Veteran was given a VA examination in September 2014. The Veteran was seen in person by the VA psychologist and his claims file was reviewed. Again, the VA psychologist confirmed the Veteran's current diagnosis of PTSD according to the DSM-5. The psychologist then conducted an extensive review of the Veteran's present symptoms and interviewed the Veteran regarding his military experiences. The examiner listed the three identified stressors and wrote that each of them was sufficient to cause the current diagnosis of PTSD. Importantly, the VA psychologist identified the third stressor as being adequate to support the PTSD diagnosis, but that it was not related to the Veteran's fear of hostile military or terrorist activity. The VA psychologist wrote that this "event was horrifying but did not involve direct combat or terrorist activity." Later in the exam, the VA psychologist remarked that the Veteran's PTSD is "more likely than not caused by his noted in-service stressors ... which are adequate to support the diagnosis." They also noted that, "although the stressors occurred during the Veteran's military service in Vietnam, they do not appear to have contributed to his fear of enemy military or terrorist activity. All stressors are felt to be consistent with the places, types and circumstances of the Veteran's service." The RO then sent the Veteran's claims file to a different VA psychologist in November 2014 and requested if the current diagnosis was due to his military service. The VA psychologist indicated that they conducted a review of the Veteran's claims file. They then opined that the "Veteran's currently diagnosed PTSD is caused by or related to the events of military service. The identified stressors all occurred during his [tour of duty] in [Vietnam]." There is no evidence that the VA psychologists were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the etiology of the Veteran's diagnosed PTSD. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Again, the Board recognizes that each of the listed stressors as put forward by the Veteran augments his belief that he was exposed to a fear of hostile/military forces while in an active war zone within the Republic of Vietnam. Importantly, the VA psychologist found that the third stressor, involving the heads being removed from the bodies of children, was adequate to support the current diagnosis of PTSD. They then denied that the stressor was related to the Veteran's fear of hostile military or terrorist activity, saying that it did "not involve direct combat or terrorist activity." That same psychologist then remarked that the Veteran's PTSD diagnosis was at least as likely as not due to his military service, to include the stressors. The Veteran's claim was then forwarded to a different VA psychologist who also confirmed that the Veteran's PTSD was etiologically related to his in-service stressors. The Board finds that the conclusion of the September 2014 VA psychologist that the stressor was adequate to support the current PTSD diagnosis but was not related to hostile military/terrorist activity is, at best, illogical. To put it plainly, the Veteran discussed entering a village in the Republic of Vietnam, whereby hostile enemy forces had removed the heads of individuals including children and "left the bodies lying there." Seeing such a horrific event would clearly result in fear of the hostile military/terrorist forces that had presumably caused it. For the purposes of 38 C.F.R. § 3.304(f)(3), the Board finds it hard to imagine any possible stressor that could more clearly fit within the regulatory definition of "fear of hostile military or terrorist activity," than what the Veteran has described. On the contrary, a hostile military force actively removing the heads off of individuals, including children, and then leaving the bodies to lay out, was likely done for the exact purpose of terrorizing others. Equally important, the Board again notes that the September 2014 VA psychologist confirmed that this stressor was adequate to support the diagnosis of PTSD. That psychologist then later confirmed that the diagnosis was etiologically related to the Veteran's service, and this conclusion was again confirmed by a different VA psychologist in November 2014. While the September 2104 VA psychologist was of course competent to provide such a diagnosis, legally speaking, 38 C.F.R. § 3.304(f)(3) does not give the VA examiner the sole authority to find what is or is not related to "fear of hostile military or terrorist activity." That is a matter that may be left to the adjudicator. And in the present case, affording the Veteran the benefit of the doubt, the Board has already confirmed that the stressor described by the Veteran is related to a fear of hostile military or terrorist activity. 38 C.F.R. § 3.304(f)(3). Therefore, the Board finds that the criteria for entitlement to service connection have been met. To summarize and considering the relaxed criteria for entitlement to service connection under 38 C.F.R. § 3.304(f)(3), the Board has confirmed that the Veteran has active duty service in the Republic of Vietnam during a period of war. The Veteran also has a confirmed diagnosis of PTSD from the September 2014 VA psychologist. The Board has made a factual finding that the stressor described by the Veteran is related to his fear of hostile military/terrorist forces while serving in the Republic of Vietnam. And finally, the Veteran's confirmed diagnosis of PTSD has been attributed by competent evidence to the Veteran's exposure to his fear of hostile military/terrorist forces while service in the Republic of Vietnam. They also later indicated that that the PTSD was etiologically related to the Veteran's service, and importantly, that the stressor was consistent with the places, types, and circumstances of the Veteran's service in the Republic of Vietnam. The RO obtained a second positive etiological opinion, again linking the Veteran's PTSD to his active duty service within a warzone in the Republic of Vietnam, and the Veteran's claims file contains no negative nexus opinions to refute such findings. (Continued on next page.) Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that he has met the criteria for entitlement to service connection for PTSD. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 38 C.F.R. § 3.304 (f)(3); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's claim of entitlement to service connection for PTSD is granted. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Mulrain, 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.