Citation Nr: 1648543	
Decision Date: 12/30/16    Archive Date: 01/06/17

DOCKET NO.  16-31 633	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD).


REPRESENTATION

Veteran represented by:  Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

M. Gonzalez, Associate Counsel 

INTRODUCTION

The Veteran served on active duty from July 2006 to October 2007, October 2008 to October 2009, and April 2011 to July 2012, to include service in Operation Enduring Freedom in Kuwait.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision from the Department of Veterans (VA) Regional Office (RO) in Chicago, Illinois.  

In October 2016, the Veteran testified during a video conference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDING OF FACT

The probative evidence of record demonstrates that the Veteran's PTSD with depression is at least as likely as not related to her active duty service. 


CONCLUSION OF LAW

The criteria for service connection for PTSD with depression have been met.  38 U.S.C.A. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); see also Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA.  VA shall consider all information and medical and lay evidence of record.  Where there is an approximate balance of positive and negative evidence regarding any material issue to the determination of a matter, VA shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

Establishing service connection for PTSD requires:  (1) medical evidence diagnosing PTSD 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) (requiring PTSD diagnoses to conform to the criteria in the Diagnostic and Statistical Manual of Mental Disorders (DSM)); see also Cohen v. Brown, 10 Vet. App. 128 (1997).

A veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor in certain circumstances.  These circumstances include when (1) the evidence establishes a diagnosis of PTSD during service and the claimed stressor is related to that service and consistent with the circumstances, conditions, or hardships of the veteran's service; (2) the evidence establishes that the veteran engaged in combat with the enemy and the stressor is related to that combat and consistent with the circumstances, conditions, or hardships of the veteran's service; (3) the stressor claimed by the veteran is related to the 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 stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the stressor is consistent with the places, types, and circumstances of the veteran's service; and, (4) the evidence establishes that the veteran was a prisoner-of-war and the claimed stressor is related to that prisoner-of-war experience and is consistent with the circumstances, condition, or hardships of the veteran's service.  38 C.F.R. § 3.304(f)(1)-(4).  The lay testimony can be rebutted by clear and convincing evidence to the contrary.  Id. 

Where the claimed stressor is not related to combat, a veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor.  See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor.  See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); see also Zarycki v. Brown, 6 Vet. App. 91, 98 (1993).  Moreover, a medical opinion diagnosing PTSD does not suffice to verify the occurrence of a claimed in-service stressor.  See Moreau, 9 Vet. App. at 395; see also Cohen, 10 Vet. App. at 142.

The Veteran contends that she has PTSD due to in-service harassment by her superior officer.  The Veteran testified at an October 2016 Board hearing that her PTSD is due to her in-service harassment which she testified included patrolling the base during a sandstorm, and swabbing the deck after a sandstorm.  The Veteran testified that she was medevacked out of Kuwait after she reported wanting to commit suicide.

In her April 2013 statement in support of her service connection claim for PTSD the Veteran asserted the stressful incidents occurred from December 2011 to the present.  To support this the Veteran submitted an April 2013 timeline of events in which the Veteran asserted that the active duty harassment began when she was unable to return to Kuwait due to a physician's travel restriction for fluid in her ear.  In the timeline of events the Veteran asserted that upon returning to Kuwait she was harassed in retaliation for not returning sooner.  She asserted that her harassment included being made to stand watch for hours in sandstorms, and that she was made to swab the deck in what she asserted were black flag conditions.  The Veteran asserted that in May 2012 these incidents led to her suicidal ideation, which she asserted she was medevacked out of Kuwait for, and redeployed back to the United States to a psychiatric ward in Portsmouth, Virginia.  

Service treatment records confirm the Veteran was diagnosed with fluid in the ear and discharged from hospitalization in January 2012.  The record verifies the Veteran was hospitalized in Kuwait in May 2012, and subsequently medevacked out of Kuwait and admitted to a psychiatric ward in Portsmouth, Virginia due to suicidal ideation.   In a September 2012 Post-Deployment Health Re-Assessment the examiner noted that the Veteran was "harassed during deployment."  The examiner noted the Veteran should be referred to a Vet Center for harassment issues.  In a February 2013 Physician's Recommendation for Limitations for Military Duty the examining physician noted the VA progress notes contained "clear harassment."  The physician diagnosed PTSD.

Upon review, the Board finds that the Veteran has consistently and credibly reported the details of her alleged in-service stressor, and that there is sufficient credible, supporting documentation for the Veteran's assertions that she experienced harassment during active duty.  As the evidence establishes a diagnosis of PTSD during service, in a July 2013 Line of Duty Benefits approval letter, and the claimed stressor is related to that service and consistent with the circumstances of service, and there is no clear and convincing evidence to the contrary; the Board finds the evidence demonstrates that the Veteran's claimed in-service stressor occurred.  See 38 C.F.R. § 3.304(f); see also Gilbert, 1 Vet. App. at 53.   

In February 2013 the Veteran underwent a VA psychiatry examination to complete a recommendation for limitation for military duty required by the Navy medical department for line of duty benefits.  The examining physician reviewed the Veteran's medical history, the Veteran's reported in-service events, and performed a personal examination of the Veteran and diagnosed the Veteran with PTSD based on the claimed in service harassment.   

In a February 2014 VA examination the examiner reviewed the Veteran's claims file, and performed a personal examination of the Veteran and noted that "results reveal an individual who is experiencing clinically significant distress related to military experiences."  The examiner concluded that the Veteran's symptoms did not meet the DSM criteria for a diagnosis of PTSD.  The examiner indicated that the Veteran's symptoms were mild and transient and only flare up when she is required to communicate with her reserve unit, and that the Veteran' symptoms were better explained by depressive disorder.  The examiner further opined that "there is no nexus established by the medical evidence between the Veteran's current psychiatric symptoms and the claimed stressor."

In September 2016 the Veteran's private treatment practitioner diagnosed the Veteran with PTSD using the complete DSM criteria.  The practitioner opined that the Veteran's symptoms are triggered by her memories of a traumatic event that occurred in Kuwait, in which she was harassed by a superior officer who forced her to do a watch in a sandstorm, and that these symptoms cause clinically significant impairment in her social functioning.  

There is conflicting medical evidence pertaining to the question of whether the Veteran has a current diagnosis of PTSD related to the claimed in-service harassment.  In weighing opinions, the Board has the authority to consider the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence.  See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997).  In evaluating the probative value of competent medical evidence, the United States Court of Appeals for Veterans Claims (Court) has stated that the probative value of a medical opinion is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches.  Further, the credibility and weight attached to these opinions are within the province of the adjudicator.  See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993).  As such, the Board may appropriately favor the opinion of one competent medical authority over another.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  

The VA examiner in February 2014 initially rationalized there was no evidence of impairment in social functioning or post military decline in normal activities of daily living, but went on to state that the Veteran revealed symptoms that fall within a range indicative of mild and transient impairment in psychological, social, and occupational functioning.  The examiner concluded that there was no nexus between the Veteran's current psychiatric symptoms and the claimed stressor, and it was less likely than not that the Veteran's depressive disorder was incurred in or caused by military experience.  In her analysis, however, the examiner opined that the Veteran's symptom's flare up when she is required to communicate with her reserve unit, and that "results reveal an individual who is experiencing clinically significant distress related to military experience."  The examiner attempted to reconcile the Veteran's prior PTSD diagnosis by stating that in general, psychiatric disorders can present different clinical pictures at various points in the course of the illness, and that conflicting diagnoses may indicate different symptoms were reported to different clinicians at different points in the Veteran's illness.  The examiner, however, does not discuss what symptoms were reported to the prior physician and how that contributes to the Veteran's current psychiatric condition.

Given the examiner's contradictory findings it is not clear how the examiner reached the conclusion that there was no nexus between the Veteran's psychiatric symptoms and claimed stressor, and that it was less likely than not that the Veteran's depressive disorder was not incurred in or aggravated by military service.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (an opinion must contain clear conclusions with supporting data, and a reasoned explanation connecting the two).  As such, the Board affords little probative value to the February 2014 VA examiner opinion.

The Board affords the February 2013 VA treatment provider opinion and September 2016 private practitioner opinion more probative weight than the February 2014 VA examiner opinion because the Veteran's private practitioner provides psychotherapy to the Veteran on a weekly basis, and the VA treatment provider and private practitioner opinions are supported with sufficient rationale and consistent findings on examination, and with consideration to the Veteran's treatment history and lay statements.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Madden, 125 F.3d at 1481.  Although the VA treatment provider and private practitioner did not explicitly state they used the DSM criteria, as mental health professionals, they are presumed to know and to provide a mental health condition diagnosis based on the DSM.  See Cohen, 10 Vet. App. at 140.  As such, resolving any doubt in favor of the Veteran, the Board finds that the probative evidence demonstrates that the Veteran has a current diagnosis of PTSD rendered in accordance with 38 C.F.R. § 4.125(a).  See 38 C.F.R. § 3.304(f); see also Gilbert, 1 Vet. App. at 53.

In summary, the probative evidence of record shows a verified in-service stressor, medical evidence diagnosing PTSD based on that stressor, and a link between the Veteran's current symptoms of PTSD and depression and the in-service stressor.  Therefore, service connection for PTSD with depression is warranted.  38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 53.


ORDER

Service connection for PTSD with depression is granted.



____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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