POSTTRAUMATIC STRESS DISORDER (PTSD)

Z. SAHRAIE · 2022 · Case ID: 22060413

GRANTED

Summary

The Veteran, a Marine Corps Veteran who served from November 1990 to May 1991 and May 1992 to September 1992, appeals the denial of service connection for Post-Traumatic Stress Disorder (PTSD). The Veteran claims his PTSD is related to combat stressors experienced in Kuwait during Desert Storm, specifically witnessing a grenade accident involving a fellow service member and engaging in combat with Iraqi soldiers. The Board reviewed conflicting medical evidence regarding the PTSD diagnosis. While two VA opinions in 2015 and 2018 found the Veteran did not meet DSM-5 criteria for PTSD, these were contradicted by a 2016 VA psychiatry note, a 2019 VA consult, and a 2021 private examination. The Board found the 2021 private opinion from Dr. J.S. to be the most persuasive, diagnosing PTSD and linking it to corroborated stressor events. The Board gave little weight to the negative VA opinions, noting inconsistencies and failures to address all relevant evidence. The Board found the Veteran's account of combat events credible, supported by his Combat Action Ribbon, MOS as a combat engineer and tank crewman, and his statements about engaging in combat. The July 2021 private opinion also linked the PTSD to these combat stressors. Resolving all reasonable doubt in the Veteran's favor, the Board granted service connection for PTSD.

Rationale

Conflicting medical opinions regarding PTSD diagnosis.; Board found July 2021 private opinion persuasive.; Negative VA opinions given little weight due to inconsistencies.; Veteran's account of combat stressors found credible.; Private opinion linked PTSD to corroborated combat stressors.; Benefit of the doubt resolved in Veteran's favor.

Service Branch

MARINE CORPS

Special Benefit

NO SPECIAL BENEFIT

Docket No.

18-45 986

Full Decision Text

Citation Nr: 22060413
Decision Date: 10/27/22 Archive Date: 10/27/22

DOCKET NO. 18-45 986
DATE: October 27, 2022

ORDER

Entitlement to service connection for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder (PTSD), is granted.

FINDING OF FACT

1. The evidence demonstrates that the Veteran's PTSD is etiologically related to in-service stressors.

CONCLUSION OF LAW

1. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.125.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marines from November 1990 to May 1991 and from May 1992 to September 1992. By way of background, the Veteran's October 2015 claim of service connection for PTSD was denied in a November 2015 rating decision.

In April 2016, the Veteran initiated an appeal in the Department of Veterans Affairs (VA) "legacy" appeal system. In July 2018, the Regional Office (RO) of the VA issued a Statement of the Case (SOC) which continued to deny his petition. In September 2018, the Veteran filed a Form 9. In March 2019, the Board certified the Veteran's appeal. In October 2021, the Veteran was scheduled and cancelled a hearing. The appeal is properly before the Board. The claim was filed in October 2015, and so from then to now is the period of concern.

Service Connection

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. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, 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 the so-called 'nexus' requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

Service connection for PTSD is governed by 38 C.F.R. § 3.304(f), which requires: (1) medical evidence diagnosing the condition in accordance with the DSM-5, 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor occurred, and (3) a link, established by the medical evidence, between current symptoms and an in-service stressor.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as post-traumatic stress disorder (PTSD), is granted.

The Veteran contends that he has PTSD that is related to his November 1990 to May 1991 period of service. He contends that his PTSD is attributable to events that occurred while he was serving in Kuwait during Desert Storm. He contends that in February 1991, he witnessed his fellow service member killed by an accidental discharge of a grenade and had to put the deceased into the body bag. See October 2015 Veteran's Statement and April 2016 T.D. Buddy Statement. In February 1991, Veteran contends that he saw a tank explosion while trying to blow up mines. October 2015 Veteran Statement. In February 1991, the Veteran also contends that he shot Iraqi soldiers and Iraqis soldiers shot at him. October 2015 Veteran Statement. His military occupational specialties (MOS) were a combat engineer and tank crewman, which exposed him to combat; it is not in dispute that he was exposed to witnessing various distressful events in the course of his duties in such MOS.

The question for the Board is whether the Veteran has a diagnosis of PTSD, whether an in-service stressor occurred, and whether there is a link, established by the medical evidence, between his PTSD and an in-service stressor.

As to the presence of a current diagnosis,
to blow up mines. October 2015 Veteran Statement. In February 1991, the Veteran also contends that he shot Iraqi soldiers and Iraqis soldiers shot at him. October 2015 Veteran Statement. His military occupational specialties (MOS) were a combat engineer and tank crewman, which exposed him to combat; it is not in dispute that he was exposed to witnessing various distressful events in the course of his duties in such MOS.

As to the presence of a current diagnosis, a November 2015 VA examiner found that the Veteran did not meet the DSM-5 criteria for PTSD. November 2015 VA Opinion. In August 2016, a VA psychiatrist assessed the Veteran with PTSD symptoms. See August 2016 Psychiatry Note. In July 2018, a VA examiner found that the Veteran's symptoms did not meet the diagnostic criteria for PTSD under DSM-5 criteria. July 2018 VA Opinion. In an April 2019 VA consult, the VA psychologist noted his diagnostic impression that the Veteran presented with symptoms associated with PTSD. August 2019 VA Consult. In July 2021, a private psychologist examined the Veteran and diagnosed the Veteran under DSM-5 criteria. July 2021 Private Exam.

The Board acknowledges that the record contains two negative opinions with respect to the presence of PTSD in this case. However, that evidence is contradicted by PTSD diagnoses of record, including an August 2016 psychiatry note, an April 2019 VA consult, and a July 2021 private opinion.

The Board finds the July 2021 private opinion of Dr. J.S. to be adequate, probative, and ultimately persuasive on the critical question of whether the Veteran has a diagnosis of PTSD. It discusses the various DSM-5 criteria, noting all the criteria are met, and provides a thorough explanation for the conclusion reached (that the Veteran has a diagnosis of PTSD based on the stressor events that are corroborated). Moreover, it is supported by citation to supporting clinically noted data. The July 2021 private examiner reviewed the various conflicting evidence (to include reports of prior VA examinations) regarding the Veteran's non-diagnosis and indicated that he was able to render a clear current diagnosis. For these reasons, the Board finds that the July 2021 private opinion to be the most probative evidence in the record regarding whether the Veteran has a diagnosis of PTSD in accordance with DSM-5. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

In contrast, the November 2015 VA negative opinion found that the Veteran was feigning symptoms and did not cooperate with the examiner without any explanation. The examiner's opinion marked symptoms about Criterion A, B, C, D, E, but marked "No response provided" for Criterion F, G, H, and I. It is unclear why the examiner wrote "No response provided." The examiner's opinion does not specify whether the Veteran did not answer the questions, or the Veteran answered, and the examiner marked it as "No response provided" because the examiner believed the Veteran was feigning and not cooperating. Considering the Veteran provided responses to Criterion A, B, C, D, E, it would be reasonable to believe that he would have responded to the other criterion. Thus, this opinion is given little weight. Id.

The Board also finds that the July 2018 VA opinion is afforded little probative weight because it failed to address the mental health records of the Veteran dating back as far as August 2016 psychiatry note and failed to address the positive VA findings of PTSD in August 2016 and August 2019. Thus, this opinion is given little weight. Id.

Next, the Board must review whether an in-stressor occurred. The Board finds that the Veteran was a combat veteran evidenced by his combat action ribbon, his military occupation as a combat engineer and tank crewman, and his statements about engaging combat with the Iraqi soldiers. The Veteran also witnessed his fellow service member jump on a grenade and had to put the deceased in a body bag. These events as described by the Veteran are consistent with the nature of his service and the Board regards the Veteran's account as credible.

The final question for the Board is whether the Veteran's current PTSD is etiologically related to those stressors. Here, the July 2021 private examiner opined that it is at least as likely as not that the Veteran's present PTSD diagnosis is due to, or the
occurred. The Board finds that the Veteran was a combat veteran evidenced by his combat action ribbon, his military occupation as a combat engineer and tank crewman, and his statements about engaging combat with the Iraqi soldiers. The Veteran also witnessed his fellow service member jump on a grenade and had to put the deceased in a body bag. These events as described by the Veteran are consistent with the nature of his service and the Board regards the Veteran's account as credible.

In sum, the most probative evidence of record favors the claim that the Veteran's current PTSD is etiologically related to service and, resolving all reasonable doubt in the Veteran's favor, the appeal for service connection for PTSD will be granted.

Z. Sahraie

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Timothy Forneris

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.

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