Citation Nr: 22014847 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 18-15 098 DATE: March 15, 2022 ORDER Entitlement to service connection for posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, he has been diagnosed with PTSD by a VA psychologist based on an in-service stressor involving fear of hostile military or terrorist activity that is consistent with the circumstances his service in Somalia. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 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 from October 1988 to March 1995 with service in Somalia. This case is before the Board of Veterans' Appeals (Board) on appeal from a February 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claim file. Now the matters are before the Board on appeal. Service Connection Governing Laws and Regulations A veteran is entitled to VA disability compensation if there is disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. To establish service connection for a claimed disorder, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD requires: (1) medical evidence diagnosing the condition 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 link between current symptomatology and the claimed in-service stressor. 38 C.F.R. § 3.304 (f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). If a stressor claimed by a veteran is related to his "fear of hostile military or terrorist activity" and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms 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 sniper fire, 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)(3). 38 C.F.R. § 3.304 (f)(3). Within the legal framework for evaluating claims of service connection for PTSD, the sufficiency of a stressor is a medical determination, while the occurrence of the stressor is a legal determination. Sizemore v. Principi, 18 Vet. App. 264 (2004). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." 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). For VA to deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App., at 54. Facts and Analysis The Veteran contends his PTSD is related to the threat of injury and death from enemy forces in Somalia. Turning first to Hickson element (1), a current disability, there is conflicting medical evidence on whether the Veteran had PTSD since he filed his claim in October 2015. A January 2016 VA examination report reveals the examiner did not diagnose PTSD. The examiner stated found the Veteran did not meet the diagnostic criteria for PTSD under DSM-V because the Veteran lacked symptomology due to the reported stressor to fulfill criterion B, C, D, and E for a PTSD diagnosis, and diagnosed the Veteran with an unspecified mental disorder that was more suggestive of a personality disorder. The Veteran's medical records, including the report of a September 2015 VA psychiatric examination, show that he has been diagnosed with PTSD based on the DSM-5 criteria by a VA psychologist, and he also has a history of history of bipolar disorder, alcohol abuse, unspecified personality disorder. See e.g., VA Houston Medical Center (MC) medical treatment record, September 30, 2015. Moreover, PTSD was identified as the primary diagnosis in December 2015 with borderline personality disorder as secondary, and the Veteran's records continue to indicate the diagnoses as such. See e.g., Houston VAMC medical treatment record, January 18, 2018 Inpatient Discharge Note. Given that the treating psychiatrist diagnosed PTSD using DSM-V in the treatment records, the evidence is in equipoise as to whether the Veteran has PTSD. Thus, Hickson element (1), current disability, is established. As for an in-service stressor, the Veteran's DD Form 214 confirms that he served in Somalia. The Veteran testified that he was fearful of hostile military activity in Somalia, and the evidentiary record includes his report of a traumatic incident that occurred when he performed duty as the sergeant major's driver. He was ordered to keep driving after he slowed the military vehicle to give food to a small child on the side of the road. He heard small arms fire almost immediately after passing the child and knew she had died. He was later told that stopping could slow the convoy and leave them vulnerable to attack. The Veteran was so affected that he reported reliving the incident over and over. See October 2021 Board Hearing Transcript; see also Veteran's November 2015 Correspondence/ Lay Statement. The Board finds his reports of an in-service stressor are credible and consistent with the evidentiary record and the circumstances of his services. The September 2015 VA psychiatric examination establishes a link between the Veteran's PTSD and the in-service stressor in Somalia. The psychologist's PTSD diagnosis was based on the Veteran's reported stressor, as well as two other traumatic events he witnessed in Somalia. The psychologist specifically identified the Veteran's stressors were related to war-zone trauma, having been exposed to injury and death of others. See Houston VAMC medical treatment record, September 30, 2015. Further, although the January 2016 VA examiner did not diagnose PTSD, the Veteran's report of a military stressor was noted to have been borderline as meeting the criterion A stressor. Based on the above and resolving reasonable doubt in the Veteran's favor, the Board finds that he has been diagnosed by a VA psychologist as having PTSD based upon an in-service stressor related to fear of hostile military or terrorist activity in Somalia. Therefore, the criteria for service connection for PTSD are met and service connection for PTSD is warranted. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304 (f). MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.