Citation Nr: 21042141 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 14-19 446 DATE: July 12, 2021 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's PTSD is causally related to an in-service stressor. CONCLUSION OF LAW The criteria for service connection for PTSD have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304(f). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the U.S. Navy from July 1972 to April 1975. In March 2019, the Board issued a decision which denied service connection for PTSD. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the Court issued a Memorandum Decision, which set aside the portion of the Board's decision that denied entitlement to service connection for PTSD and remanded the matter for further consideration and instructions consistent with the Court's Memorandum Decision. 1. Entitlement to service connection for PTSD Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). In addition to the laws and regulations noted above, supplementary regulations govern PTSD claims. Service connection for post-traumatic stress disorder (PTSD) requires: (1) a medical diagnosis of PTSD utilizing, in this case, the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-V) criteria, in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor. See 38 C.F.R. § 3.304 (f); Cohen v. Brown, 10 Vet. App. 128, 138 (1997). 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). "[F]ear 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. See id. In relevant part, 38 U.S.C. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran asserts that he has PTSD due to in-service stressors. Two of his stressor accounts pertain to personal assaults. The first involved an attack on the Veteran and his shipmates by Scottish locals while in a bar. The fight led to a riot during which the Veteran reported being injured and at one point feared for his life. A few months later, a fellow shipmate blamed the Veteran for starting the riot and stabbed him in the hand. He denied the attack, instead reporting that he fell on the knife to avoid further retaliation. The Veteran and several other soldiers were arrested, convicted, and served jail time for inciting the riot. While in prison, the Veteran reported witnessing another inmate be stabbed to death. Review of the Veteran's service treatment records do not show any diagnosis or treatment for a psychiatric disorder. A January 1974 note shows he received 22 stiches for a laceration in his left hand. Personnel records confirm an administrative discharge following "conviction by civil authorities of mobbing and rioting on 13, October 1973 in Dunoon, Argyll, Scotland." An October 2010 memo confirmed there was a lack of information required to corroborate stressors associated with a claim for PTSD. Specifically, the Veteran had not provided lay statements establishing stressors relating to fear of hostile military or terrorist activity, despite many efforts made to obtain such evidence. Treatment records show the Veteran attended psychiatric counseling in December 2010 and reported his stressors as spending a year in prison and witnessing a stabbing. In March 2011, he reported being high alert while serving in Scotland due to tension with locals. In his October 2011 notice of disagreement, he indicated that his service in Scotland and year spent in a Scottish prison caused his PTSD. He reported mental and physical abuse while in prison, as well as witnessing many traumatic events. The Veteran's sister submitted a letter in January 2013 and described how he changed upon return from service. Specifically, he returned home angry, introverted, and depressed. He rarely wanted to be around family, attend events, or communicate with others. His wife wrote that he came back home very depressed, irritable, and distant. He had trouble concentrating and sleeping at night due to nightmares. In a September 2013 statement written in support of his claim, the Veteran indicated that he believed that he and his friends were used as scapegoats when they were convicted for the riot in Scotland and subsequently discharged from the Navy. In his May 2014 substantive appeal, the Veteran reiterated his contention that he developed an acquired psychiatric disorder and/or PTSD from being attacked by "racist white local Scottish men seeking fights with US servicemen." He believed that the Scottish locals and even some of his white supervisors were prejudiced against him and it was fueled by the Civil Rights movement happening in the states. Multiple treatment records from his psychiatric counseling sessions in 2015 and 2016 detail the Veteran's reports of his time in the Scottish prison and identifies those experiences as his stressor. The Veteran was afforded multiple VA examinations during the appeal period that tend to agree he has a diagnosis and has experienced stressors but differ on whether his in-service stressor caused his current PTSD diagnosis. The Veteran was afforded a VA PTSD examination in July 2016 and was diagnosed with PTSD and cocaine use disorder in full remission. The examiner noted several stressors but ultimately found that his involvement in the riot and witnessing the stabbing while in prison were adequate to support his diagnosis. However, only the stabbing incident was found to have contributed to the Veteran's PTSD. The examiner also noted some service personnel records in which the Veteran reported anxiety, depression, and low mood due to the outcome of his legal case. Still, the examiner found that there was no evidence showing significant distress or functional deficits in association with the events that occurred during service. As such, the examiner opined that there was insufficient evidence to support the presence of a mental health disorder during service. The December 2019 examiner diagnosed both PTSD and an unspecified depressive disorder, but the opinion mostly focused on the etiology of his depressive disorder. The examiner conceded that treatment notes have cited tinnitus as a stressor causing depression, but ultimately opined that his depression was multifactorial and other comorbid conditions led to his depression. Still, the examiner found it less likely than not that the depressive disorder was proximately due to his tinnitus. As for PTSD, it was found that witnessing a stabbing while in prison contributed to the development of the Veteran's PTSD, this occurred after and was unrelated to his service. The most recent examination was completed in May 2021 and the examiner found a single diagnosis of PTSD. In an addendum to the examination report, the examiner found that the Veteran's PTSD was more likely than not caused by his noted stressors, which are adequate to support the diagnosis and associated with his fear for his personal safety and witnessing the stabbing death of another. The examiner found that his stressors appeared to consistent with the record, as well as the circumstances of his service. His lay testimony was corroborated by the record documenting the riot, his subsequent arrest and conviction. His service medical records confirm an injury and treatment for a laceration. In this case, the evidence is in a state of relative equipoise regarding whether the Veteran's PTSD was caused by the in-service riot, subsequent stabbing, and/or the post-service witnessing the death of another. The 2011 VA treatment records, his September 2013 and May 2014 statements met the basic service connection requirements under 38 C.F.R. § 3.304(f)(1) and (f)(5). These VA mental health records together with the March 2021 examination include quantitative PTSD testing, identification of his reported stressors as involving fear for his personal safety to support a diagnosis, and a PTSD diagnosis by a VA psychologist attributable to that military stressor. Despite the existence of a post-service stressor (his prison experience and witnessing a stabbing), which the July 2016 and December 2019 examiners found to be the only stressor that caused his PTSD, the evidence of record shows Veteran's in-service stressors also contributed to the development of his mental health disorder. For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran currently has PTSD and whether it is related to the in-service fear for his personal safety. As any reasonable doubt must be resolved in favor of the Veteran, entitlement to service connection for PTSD as attributable to the in-service stressors of the riot in Scotland and a left-hand laceration from an attack by a shipmate is warranted. 38 U.S.C. §§ 5107(b); 38 C.F.R. § 3.102. J. CONNOLLY Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Price, Esq. 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.