Citation Nr: 0006324 Decision Date: 03/09/00 Archive Date: 03/17/00 DOCKET NO. 96-13 282 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Wade R. Bosley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from March 1968 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. FINDINGS OF FACT 1. The RO has obtained all relevant evidence necessary for the equitable disposition of the veteran's appeal. 2. The veteran had Vietnam service from September 1969 to October 1970. Service records show receipt of medals including the Combat Infantryman Badge. 3. The veteran was engaged in combat with the enemy during active duty service. 4. The veteran is currently diagnosed as having PTSD as the result of his combat experiences. CONCLUSION OF LAW The veteran incurred PTSD during active duty service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(d) and (f) (1999); 38 C.F.R. § 3.304(f) (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION As a preliminary matter, the Board finds that the veteran's claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). See Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim which is not implausible when his contentions and the evidence of record are viewed in the light most favorable to the claim. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Generally, service connection may be granted if the facts, as shown by the evidence, demonstrate that the current disability resulted from an injury or disease incurred in or aggravated coincident with service in the Armed Forces. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). During the pendency of the veteran's appeal, VA amended 38 C.F.R. § 3.304(f), which addresses the specific criteria for service connection for PTSD, effective March 7, 1997. 64 Fed. Reg. 32,807-32808 (1999) (amending 38 C.F.R. § 3.304 to implement changes as set forth in Cohen v. Brown, 10 Vet. App. 128, 140 (1997)). Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). The previous version of 38 C.F.R. § 3.304(f) reads, in pertinent part, as follows: Service connection for post- traumatic stress disorder requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (in effect prior to March 7, 1997). The amended version of 38 C.F.R. § 3.304(f) reads, in pertinent part, as follows: Service connection for post- traumatic stress disorder requires medical evidence diagnosing the condition in accordance with Sec. 4.125(a) of this chapter; 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. 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) (1999) (effective March 7, 1997). With respect to the diagnosis criterion, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) (hereinafter "the Court") has indicated that a "clear" diagnosis of PTSD is, at minimum, "an unequivocal one." Cohen, 10 Vet. App. 128, 139 (1997). The Court also acknowledged that VA's adoption of the fourth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV) effected a shift in diagnostic criteria from an objective standard to a subjective standard. 61 Fed. Reg. 52695-52702 (1996) (amending 38 C.F.R. §§ 4.125 & 4.126). See Karnas, 1 Vet. App. at 312-313. Thus, the sufficiency of a stressor to cause PTSD is a clinical determination for the examining mental health professional. Cohen, 10 Vet. App. at 153 (Nebeker, Chief Judge, concurring by way of synopsis). The Court also noted that, if there is an unequivocal diagnosis of PTSD by mental heath professionals, it presumes that the diagnosis was made in accordance with the applicable DSM criteria as to both adequacy of symptomatology and sufficiency of the stressor (or stressors)." Id. If there is a question as to whether the report or examination is in accord with applicable DSM criteria, the report must be returned for a further clarification as needed. Id. The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." See Gaines v. West, 11 Vet. App. 353 (1998) (Board must make a specific finding as to whether the veteran engaged in combat). If VA determines that the veteran engaged in combat with the enemy and his alleged stressor is combat-related, then the veteran's lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence and no further development or corroborative evidence is required, providing that such testimony is found to be "satisfactory," i.e., credible, and "consistent with the circumstances, conditions, or hardships of service." 38 U.S.C.A. § 1154(b); 38 C.F.R. 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, VA determines either that the veteran did not engage in combat with the enemy or that the veteran did engage in combat, but that the alleged stressor is not combat related, the veteran's lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates the veteran's testimony or statements. Cohen, 10 Vet. App. at 147; Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see Zarycki, 6 Vet. App. at 98. The final requirement is medical evidence of a nexus between the claimed in-service stressor and the current disability. However, such after-the-fact medical nexus evidence cannot also be the sole evidence of the occurrence of the claimed stressor. Moreau, 9 Vet. App. at 396. In addition, medical nexus evidence may not be substituted by application of the provisions of § 1154(b). Clyburn v. West, 12 Vet. App. 296, 303 (1999); Cohen, 10 Vet. App. at 138. Initially, the Board finds that there is sufficient evidence to establish the in-service incurrence of the veteran's alleged stressors. On this point, the Board finds, first, that the veteran engaged in combat with the enemy. Specifically, his service records indicate that he was awarded the Combat Infantryman Badge. Under the previous version of 38 C.F.R. § 3.304(f), such an award was conclusive evidence of combat exposure. The Board applies this version of the regulation as it is more favorable to the veteran. Karnas, 1 Vet. App. at 312-313. Moreover, the Board notes that the veteran's alleged stressors are related to combat. In particular, in testimony and sworn statements, he describes firefights and ambushes in which he witnessed the death and mutilation of fellow soldiers. The Board finds that the veteran's statements are credible and consistent with combat experiences. Thus, pursuant to law and regulation, the veteran's statements alone are sufficient to establish the in-service incurrence of the alleged stressors. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) and (f); Cohen, 10 Vet. App. at 146. Accordingly, the second criterion for service connection for PTSD is established. In addition, the claims folder contains numerous opinions that relate the veteran's psychiatric disorder to his combat experiences. This evidence satisfies the third criterion for service connection for PTSD. The final question for the Board, then, is whether there is a clear, unequivocal diagnosis of PTSD. The claims folder contains voluminous medical evidence addressing the veteran's psychiatric status. Although VA examiners have generally found that the veteran did not satisfy the diagnostic criteria for PTSD, the veteran has repeatedly been hospitalized at VA facilities for treatment of PTSD. In addition, the veteran has submitted private medical evidence showing a diagnosis of PTSD. Reports supporting each contrasting opinion have included a comprehensive review of the medical evidence of record. Where there appears to be a genuine difference of medical opinion and no discernible basis for favoring one opinion over another, the Board finds that the relative balance of favorable and unfavorable evidence requires resolution of doubt in the veteran's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, resolving doubt in the veteran's favor, the Board finds that the evidence supports entitlement to service connection for PTSD. 38 U.S.C.A. §§ 1110, 1154(b), 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304(d) and (f). ORDER Subject to the laws and regulations governing the payment of monetary benefits, entitlement to service connection for PTSD is granted. RENÉE M. PELLETIER Member, Board of Veterans' Appeals