Citation Nr: 21041331 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 16-58 385A DATE: July 8, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is evenly balanced as to whether the Veteran has PTSD due to a combat stressor. CONCLUSIONS OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from May 1968 to May 1970, including combat service in the Republic of Vietnam. His awards include the Purple Heart and the Combat Infantryman Badge. This matter comes to the Board from a May 2013 rating decision, which denied service connection for PTSD. The Veteran filed a Notice of Disagreement (NOD) in October 2013. The RO issued a Statement of the Case (SOC) in October 2016, continuing the denial of service connection for PTSD. The Veteran perfected his appeal in December 2016. Entitlement to service connection for PTSD. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. Kays v. Snyder, 846 F.3d 1208, 1211 (Fed. Cir. 2017). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). In this case, the Veteran's combat Infantryman Badge and Purple Heart reflect that he engaged in combat. The Veteran described multiple combat stressors and those suffice to meet the in-service stressor element of the claim. There are conflicting medical opinions in this case as to whether the Veteran has PTSD based on his claimed in-service stressors. VA treatment records contain multiple diagnoses of PTSD based on the Veteran's combat service in Vietnam, including in January 2013. The May 2013 VA examiner declined to diagnose PTSD, finding he did not meet each of the criteria. As each of these determinations were made by competent VA health care professionals based on examination of the Veteran, they are entitled to substantial probative weight. There is thus an approximate balance of evidence as to whether the Veteran has PTSD due to his in-service combat stressors. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective August 4, 2014, 38 C.F.R. § 4.125 (a) requires that a diagnosis must conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5). 80 Fed. Reg. 14308 (March 19, 2015). Prior to August 4, 2014, 38 C.F.R. § 4.125 (a) required that a diagnosis conform to the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). As the Veteran filed his service connection claim prior to August 4, 2014, the Board has considered the DSM-IV diagnoses in the record. Although the rules relating to the permissible retroactive effects of regulations are complex, see GCPREC 7-2003, it would appear unfair and a denial of due process, Sprinkle v. Shinseki, 733 F.3d 1180, 1185 (Fed. Cir. 2013) (veterans and other claimants are entitled to due process during VA proceedings), for a veteran with a valid diagnosis of PTSD under DSM-IV to have the validity of the diagnosis removed via an amendment to the relevant regulation. Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) ("Whatever remains of Karnas, the caselaw is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive"), opinion corrected, 25 Vet. App. 178 (2012); see also Rodriguez v. Peake, 511 F.3d 1147, 1153 (Fed. Cir. 2008) (discussing and applying in a veterans law context the three-part test announced in Princess Cruises, Inc. v. United States, 397 F.3d 1358, 1364 (Fed. Cir. 2005), to determine whether a change in a regulation is impermissibly retroactive by inquiring: "(1) 'the nature and extent of the change of the law;' (2) 'the degree of connection between the operation of the new rule and a relevant past event;' and (3) 'familiar considerations of fair notice, reasonable reliance, and settled expectations'"). Moreover, a remand for another VA examination when there is a diagnosis of PTSD that was valid at the time it was made could be construed as obtaining additional evidence for the sole purpose of denying a claim, which is impermissible. 38 C.F.R. § 3.304(c) ("The development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination"); Gardner-Dickson v. Wilkie, 33 Vet. App. 50, 62 (2020) (Order) (denying petition for a writ of mandamus challenging a remand, but agreeing "with the petitioner that it 'would not be permissible for VA to undertake... additional development if a purpose was to obtain evidence against an appellant's case.'") (citing Mariano v. Principi, 17 Vet. App. 305, 312 (2003) and Hart v. Mansfield, 21 Vet. App. 505, 508 (2007)); Andrews v. McDonough, __ Vet. App. __, No. 19-0352, 2021 U.S. App. Vet. Claims LEXIS 1091, at *23 (June 22, 2021) ("Remand is inappropriate where the predominant purpose is not to allow the Board to make a fully informed decision unencumbered by error but to allow VA to obtain more evidence so that it can properly deny the claim"). For the above reasons, entitlement to service connection for PTSD is warranted. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.K. Donaldson, 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.