Citation Nr: 1749112	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  06-30 111	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs


ATTORNEY FOR THE BOARD

K. McDonald, Associate Counsel




INTRODUCTION

The Veteran served on active duty in the United States Army from January 1964 to January 1966.  He is in receipt of the Combat Infantryman's Badge for service in Vietnam. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's previously denied claim of entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD).  The Veteran perfected his appeal on that issue and in February 2009, the Board found new and material evidence sufficient to reopen his claim, and then remanded the newly reopened service connection claim for further evidentiary development.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1.  The Veteran engaged in combat with the enemy during his Vietnam service and his claimed stressor is related to that period of combat. 

2.  The Veteran's currently diagnosed PTSD is causally related to his military service. 


CONCLUSION OF LAW

The Veteran's PTSD was incurred in or is otherwise related to his active service. 38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. § 3.102, 3.304 (2017). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA and its implementing regulations describe, in part, VA's legal duties to notify and assist a claimant in substantiating a claim for VA benefits.  38 U.S.C.A. 
§§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  This appeal has been considered with respect to VA's duties to notify and assist.  Given the favorable outcome - a full grant of the benefit sought - no further explanation of how VA has fulfilled the duties to notify and assist is necessary.

Legal Criteria to Establish Service Connection

To establish an entitlement to compensation for a service-connected disability, a Veteran must generally 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, 1167 (Fed. Cir. 2004).

Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor.  38 C.F.R. § 3.304(f).

If evidence establishes that a Veteran engaged in combat with the enemy, and a 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). 

Finally, after careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination (a legal condition called equipoise), VA will resolve that doubt in the Veteran's favor.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  Alternatively, to deny a claim on its merits, the evidence must weigh against the claim.  Alemany v. Brown, 9 Vet. App. 518 (1996).

Application of the Law to the Facts of this Case

At the time of the Board's prior remand in February 2009, the primary issue in contention was whether the record reflected competent and probative evidence of a current diagnosis of PTSD.  To this end, outstanding medical treatment records, and a new examination were sought.  In the subsequently obtained treatment records, a VA psychiatrist documented a diagnosis of PTSD with a stressor listed as "Vietnam War." VA treatment, October 27, 2009.  A January 2010 VA examiner also found that the Veteran did meet the necessary stressor criterion for PTSD as a Vietnam Veteran, but did not ultimately diagnose PTSD. The Veteran then submitted a March 2011 statement of a private physician, Dr. JJ who also later testified at an October 2013 Decision Review Officer hearing on behalf of the Veteran.  This physician stated that the Veteran was diagnosed with "severe and chronic PTSD directly related and due to traumatic war experiences." Private medical statement, March 2011.  

The Board recognizes that there is not unanimous agreement among the physicians of record in respect to the Veteran's ultimate psychiatric diagnosis.  However, both a VA psychiatrist and private physician have diagnosed the Veteran with PTSD, and those medical findings appear supported within the evidentiary record.  Thus, the Board finds sufficient evidence that a currently diagnosed PTSD disability exists. 

The next element necessary to establish service connection for PTSD is an in-service stressor.  In this case, the Veteran is a combat Veteran, as reflected by his receipt of the Combat Infantryman's Badge, an award definitionally requiring combat with the enemy. See DD Form 214.  As such, the Veteran's own testimony can establish the occurrence of the claimed in-service stressor when it is consistent with the circumstances, conditions, or hardships of the Veteran's service.  Here the Veteran describes witnessing the death of service peers and civilians, and experiencing feelings of guilt at his own survival.  See, e.g., VA psychiatric treatment notes, October 2005 & April 2006.  The Board finds this not to be factually inconsistent with the general conditions of service as an infantryman in Vietnam. Thus, the required criteria for an in-service stressor are met. 38 C.F.R. § 3.304(f)(2).

Finally, there must be evidence showing a causal relationship between the Veteran's current psychiatric disability and the in-service stressor.  This relationship is referred to as nexus. Here, as discussed above, both the Veteran's VA and private treatment records relate his PTSD symptomatology directly to his described combat experiences in Vietnam.  VA treatment, October 2009; Private treatment, March 2011.  The Board finds this to be adequate medical evidence of a nexus to the Veteran's service.  Service connection for PTSD is warranted. 38 C.F.R. § 3.304.


ORDER

Service connection for PTSD is granted.



____________________________________________
K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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