hypertension Bva Draft

[mrkman12]

This is a draft given to my VSO, to assist and clarify my contentions submitted. Any replies will be greatly appreciated.....mark

citation Nr:

Decision Date: Archive Date:

DOCKET NO. ) DATE

)

)

On appeal from the Department of veterans Affairs Regional office

Center in Houston Texas

THE ISSUE

Entitlement to service connection for post-traumatic stress

disorder (PTSD).

REPRESENTATION

Appellant represented by: TEXAS VETERANS COMMISSION.

WITNESS AT HEARINGS ON APPEAL

The Veteran-Appellant

ATTORNEY FOR THE BOARD

counsel

INTRODUCTION

The veteran (also referred to as "appellant" or "claimant")

served on active duty from November 1974 to March 1992.

This matter comes before the Board of veterans' Appeals

(Board) on appeal from a rating decision issued in August

1992 by the Department of veterans Affairs (VA) Medical and

Regional office Center (RO) in Houston, Texas, which denied

service connection for PTSD. The veteran entered new and

material evidence to reopen this claim, September, 2007.

page 1

Findings OF FACT

1. All evidence necessary to decide the issue on appeal is

of record.

2. The veteran did not engage in combat with the enemy.

3. The record includes a medical diagnosis of PTSD,

competent evidence which supports the veteran's assertion of

in-service incurrence of the stressful events of a personal

assault, and near fatal electrocution. medical evidence of a

nexus between diagnosed PTsD and the stressful events of

personal assault, and near fatal electrocution in service.

CONCLUSION OF LAW

The board will find with the resolution of reasonable doubt

in the veteran's favor, PTsD was incurred in service.

38 U.s.C.A. §§ 1110, 1131, 5103, 5103A, 5107

(west 1991 & Supp. 2001); 38 C.F.R. §§ 3.102, 3.303,

3.304(f), 4.125(a) (2001); 66 Fed. Reg. 45,630-32

(Aug. 29, 2001) (to be codified as amended

at 38 C.F.R. § 3.159).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veterans claims Assistance Act of 2000, Pub. L. NO. 106-

475, 114 Stat. 2096 (2000), now requires VA to assist a

claimant in developing all facts pertinent to a claim for VA

benefits, including a medical opinion and notice to the

claimant and the claimant's representative, if any, of any

information, and any medical or lay evidence, not previously

provided to the VA secretary, that is necessary to

substantiate the claim. VA has issued regulations to

implement the Veterans claims Assistance Act of 2000. 66

Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended .

at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a)).

The Board will find that, in this appellant's case, the requirements

of the Veterans claims Assistance Act of 2000 and

implementing regulations have not been met. The appellant was

not afforded personal hearings at the RO and before the

undersigned acting member of the Board. In the rating

decision, statement of the case, and supplemental statements

of the case, the RO did not advised the appellant of what must be

demonstrated to establish service connection for PTSD. A

personal assault development questionnaire was not sent to assist

in developing the claim. See Patton v. west, 12 Vet. App.

bva compensation 272 (1999).

page 2

The Board will note, further notice or assistance to the

veteran is necessary in order to decide the claim for service

connection for PTSD currently on appeal; there is reasonable

possibility that further assistance in attempting

to obtain such verifying information or current examination

or medical opinion would aid in substantiating the claim.

38 U.S.C.A. §§ 5103, 5103A (west Supp. 2001). Accordingly,

further notice to the appellant or assistance in acquiring

additional evidence is required by the new statute and

regulations.

The veteran contends that he currently suffers from PTSD as a

direct result of a personal assault, by an unknown assailant on

March, 27 1991, and a near fatal electrocution, May 16, 1983.

During his active military service.

He specifica11y contends that he sought medica1 attention ten days

later and informed the medical provider that he had

no recollection of being assualted, yet complained of various other symptoms,

and did not mention of the personal assault.

The veteran contends that he did not tell his commanding officer of the assault,

but was told in essence by TM1 Thomas, (chief Master At Arms) "due to lack of

evidence or witnesses not to mention it again", so he did not tell anyone else about

the assault until after service.

The veteran further contends that his alcohol problems in service are a

manifestation of this assault, and a near fatal electrocution.

That he experienced other behavioral problems in service and soon after service.

service connection may be granted for a disability resulting

from disease or injury incurred in or aggravated by service.

38 U.S.C.A. §§ 1110, 1131, 38 C.F.R. § 3.303(a) (2001). FOr

the showing of chronic disease in service, there is required

a combinatlon of manifestations sufficient to identify the

disease entity, and sufficient observation to establish

chronicity at the time. 38 C.F.R. § 3.303( (2001).

If chronicity in service is not established, a showing of

continuity of symptoms after discharge is required to support

the claim. Id. service connection may also be granted for

any disease diagnosed after discharge when all of the

evidence establlshes that the disease was incurred in

service. 38 C.F.R. § 3.303(d) (2001).

Service connection for PTSD now requires: medical evidence

diagnosing the condition in accordance with 38 C.F.R.

§ 4.125(a) (conforming to the Diagnostic and Statistical

Manual of Mental Disorders, Fourth Edition (DSM-IV)); 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. 38 C.F.R.

§ 3.304(f). Prior to the effective date of 38 C.F.R.

§ 3.304(f) on June 18, 1992, and at the time of the veteran's

claim for service connection for PTSD, the requirements for

service connection for PTSD were: medical evidence

establishing a clear diagnosis of the condition; credible

supporting evidence that the claimed stressor actually

occurred; and a link, established by medical evidence,

between current symptomatology and the claimed in-service

stressor. 38 C.F.R. § 3.304(f) (1998).

Generally, when a law or regulation changes while a case is pending,

the version most favorable to the claimant applies,

absent congressional intent to the contrary. Karnas v. Derwinski, 1 vet. App. 308,

312-13 (1991).

page 3

In this case, the Board will find that the new

regulation is potentially more beneficial in this veteran's

bva compensation case because it only requires medical evidence

of a current diagnosis of PTsD in accordance with DsM-IV, but no longer

requires a "clear" diagnosis of PTsD (which could include a

diagnosis based on a version of DsM prior to the DsM-IV).

However, in light of the Board's grant of the appeal, the

Board will find that the veteran was prejudiced by not being

notified of the change in the regulation. see Bernard v.

Brown, 4 Vet. App. 384 (1993).

with regard to the claimed stressor involving allegations of

personal assault, VA recognizes that veterans claiming

service connection for disability due to an in-service

personal assault~face unique problems documenting their

claims. Personal assault is an event of human design that

threatens or inflicts harm. Although these incidents are

most often thought of as involving female veterans, male

veterans may also be involved. These incidents are often

violent and may lead to the development of PTsD secondary to

personal assault.

VA ADJUDICATION PROCEDURE MANUAL M21-1,

Part III, 5.14 (April 30, 1999) (hereinafter M21-1). Because

assault is an extremely personal and sensitive issue, many

incidents of personal assault are not officially reported,

and victims of this type of in-service trauma may find it

difficult to produce evidence to support the occurrence of

the stressor. Therefore, alternative evidence must be

sought. The M21-1 includes a sample letter to be sent to the

veteran, asking him to provide detail as to any treatment he

had received, any family or friends he had communicated with

concerning this claimed personal assault, and any law

enforcement or medical records pertaining to the alleged

assault. M21-1, Part III, 5.14 (April 30, 1999). see also

YR v. west, 11 Vet. App. 393 (1998) (5.14 is a substantive

rule and the equivalent of a VA regulation).

with respect to claims involving personal assault, all

available evidence must be carefully evaluated. If the

military records do not document that a personal assault

occurred, alternative evidence might still establish an in-

service stressful incident. Behavior changes that occurred

at the time of the incident may indicate the occurrence of an

in-service stressor. Examples of behavior changes that might

indicate a stressor are (but are not limited to): (a) visits

to a medical or counseling clinic or dispensary without a

specific diagnosis or specific ailment; (B) sudden requests

that the veteran's military occupational series or duty

assignment be changed without other justification; © lay

statements indicatlng increased use or abuse of leave without

an apparent reason such as family obligations or family

illness; (d) changes in performance and performance

evaluations; (e) lay statements describing episodes of

depression, panic attacks, or anxiety but no identifiable

reasons for the episodes; (f) increased or decreased use of

prescription medications; (g) increased use of over-the- .

counter medications; (h) evldence of substance abuse such as

alcohol or drugs; (i) increased disregard for military or

civilian authority;

(j) obsessive behavior such as overeating or undereating;

(k) Ipregnancy tests around the time of the incident;

(1) increased interest in tests for HIV or sexually transmitted

; diseases;

(m) unexplained economic or social behavior changes;

(n) treatment for physical injuries around the time of the

claimed trauma but not reported as a result of the trauma;

(0) breakup of a primary relationship.

Page 4

M21-1, Part III, 5.14(7). In personal assault claims,

secondary evidence may need interpretation by a clinician,

especially if it involves behavior changes.

Evidence that documents such behavior changes may require

interpretation in relationship to the

medical diagnosis by a VA neuropsychiatric physician. M21-1,

Part III, 5.14(8).

In adjudicating a claim for service connection for PTSD, the

evidence necessary to establish the incurrence of a stressor

during service to support a claim of entitlement to service

connection for PTSD will vary depending on whether or not the

veteran was "engaged in combat with the enemy." see Hayes v.

Brown, 5 Vet. App. 60, 66 (1993). If it is determined

through military citation or other supportive evidence that a

veteran engaged in combat with the enemy, and the claimed

stressors are related to combat, the veteran's lay testimony

regarding the reported stressors must be accepted as

conclusive evidence as to their actual occurrence and no

further development or corroborative evidence will be

necessary, provided that the testimony is found to be

satisfactory, that is, not contradicted by service records,

and "consistent with the circumstances, conditions, or

hardships of such service." 38 U.S.C.A. § 1154( (west

Supp. 2001); 38 C.F.R. § 3.304(d),(f) (2001); Doran v. Brown,

6 Vet. App. 283, 289 (1994). .

However, if it is determined that a veteran did not engage in

combat with the enemy, or the claimed stressor is not related

to combat, the veteran's lay testimony alone will not be

enough to establish the occurrence of the alleged stressor.

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 stressors. See zarycki v. Brown, 6 Vet. App. 91,

98 (1993).

In this case, there is no objective evidence that the veteran

"engaged in combat with the enemy." See VAOPGCPREC 12-99.

The veteran's DD Form 214 does not indicate references to

combat, but reflects that the veteran was an operations

specialist, was stationed at san Diego, Naval Base. Aboard the

USS COOK (FF-1083) from 1987 to March 1992, and earned no

decorations, medals, badges, ribbons, or awards. Moreover,

the veteran does not even allege that the claimed in-service

stressful event of a personal assault was related to combat

with the enemy in service. For these reasons, the Board

will find that the veteran did not engage in combat with the

enemy and that the reported stressor 1S not claimed to be

related to combat.

Because the veteran did not engage in combat with the enemy,

his lay testimony alone is not enough tO estab1ish the

occurrence of the alleged stressor of personal assault.

However, after a review of the evidence, the Board will find that.

the service records and other evidence of record is

sufficient to raise a reasonable doubt as to whether the

alleged stressors of a personal assault in 27 March 1991, and a near

fatal electrocution which occurred May 16 1983

during the veteran's active duty service did occurr.

The Board should specifically consider medical and personell

records reflecting behavior changes that occurred at the

time of the incidents, or soon thereafter, as indicated by the

M21-1, which may indicate the occurrence of an in-service

stressor.

page 5

The M21-1 contemplates that visits to a medical clinic

without a specific diagnosis or specific ailment is a

behavior change occurrlng at the time of the incident that

might indicate a stressor. In this veteran's case, in

service on April 06, 1991, the veteran reported that ten

days after he sustained an injury to the left side of his

head.

His specific complaints included blurred vision,

left-sided headaches, feelings of dissassociation from

self, vertigo and nausea without vomiting, short term memory loss.

NO diagnosed disability was entered at that time, while

further observation was indicated. About three weeks later,

on April 27, 1991, the veteran reported that he felt about

the same. still no diagnosis was rendered to account for the

reported symptoms. By November 09, 1991, the veteran also

complained of nausea, irratibility, every other day for the previous

month; an assessment regarding this complaint was deferred.

while the veteran reported specific ailments, it is of note

that his reported complaints affecting both his abdomen and

head, and reported several other symptoms. These entries are some

evidence of initial visits to a medical facility without a

specific diagnosis.

The record also reflects that by May 1991 the veteran

indicated that he was unhappy in service and was anxious to

be transferred or released from his present command duty station.

This reflects the veteran's desire not to remain in service,

which includes a desire not to remain on the same base or in the

same command. This is analogous to the M21-1 behavior

change of a sudden request for a change of duty

assignment.

changes in performance and performance evaluations are

behavior changes contemplated by M21-1 that might indicate a

stressor. The only specific or quantified measures of the

veteran's performance during the period following the alleged

personal assault is a December 1990/November 1991, performance

Report which reflects that the veteran's performance steadily

deteriorated throughout the reporting period. Recieving c.o.'s NJP

91OCT 10 for Article 86, and 91 NOV 20 for Article 92. Both NJP'S

resulted in reductions in rank, from a senior E-6 recommended for

advancement, and retention to chief petty officer, to E-4.

Evaluation comments state; The veteran, fails to conform to

military standards and abuses authority, and is Not

recommended for retention and or advancement. The

veteran is being processed for administative seperation,

based on high year tenure. while this report is indicated to have

been based on the previous one year period beginning in December

1990, and ending November 1991. There

are a number of previous evaluation reports to

provide a baseline for comparison. This comparison demonstrates

a drastic change in the veterans behavior, personality,

and performance. such poor performance is also indicated by the

veteran's spouse's statement submitted October 2007. That

the veteran's behavior, personality, and

characture was drastically different than observed six months

previously when home on leave. And that the veteran was

discharged from service in March 1992 well before the end

of his four year service agreement. While it is

clear when a change in behavior in service occurred, the record

reflects that the veteran's personal conduct toward the end of

service indicated low adaptability, functionality, and

acceptability to military life. Thus, indication of a stressor by m21-1.

page 6

bva compensation

obsessive behavior is a change contemplated by M21-1 that

might indicate a stressor. His spouse wrote in October 2007

that when she went to visit the veteran in service she found

the veteran to be angry and irritable and refused to talk to

her. The veteran's spouse wrote that after service he seemed

distant, incoherent, and shallow, and would stare aimlessly

in a corner of a room or at a paticular object. The veteran's

spouse also wrote that soon after service the veteran developed the

obsessive behavior of constantl¥ locking and checking doors

multiple times daily, to the polnt of dlstraction or leaving

other activities unfinished.

Another of the behavior changes indicated by the M21-1 is

treatment for physical injurles around the time of the

claimed trauma but not reported as a result of the trauma.

service medical records reflect that on April 06, 1991

the veteran reported injury to the head but did

not report a personal assault which he later alleged

was the source of such complaints.

The Board will also find it significant that at the first

opportunity after service (the veteran filed his claim for

service connection for post concussion syndrome and for ptsd

within one month of service separation). That the veteran also

sought out assistance and counseling from the Veterans Center

located at 231 W. Cypress Ave. San Antonio, Tx. March 04, 1992.

With complaints of depression, irratability, anxiety, hopelessness,

nightmares, and hypervigilance.

DIAGNOSTIC IMPRESSION: POSSIBLE PTSD / rEQUEST FOLLOW UP SCREENING,

AND EXAMS. REFER TO: AUDIE MURPHY VA HOSPITAL sA TX.

That no VA examination in April through August 1992, was ever afforded

to the veteran. And after being told; "Since your injuries were not caused by,

or in actual combat. The VA cannot assist you, in your claims

for pension and or compensionsation". Apperantly and reluctently

the Veteran gave up seeking any assistance from the veterans administration,

for needed medical help for his non-combat service related injuries.

The veteran has not yet testified under oath at a personal hearing

regarding the incurrence of personl assualt, or near fatal electrocution

in service as of August 2009. The Board will find that, although the

veteran does not consistently recall dates of occurrence of events,

including the in-service assualt, his essential testimony regarding this

event, as well as other significant facts he reported, are

consistent with the service medical record evidence and other

corroborative evidence. The veteran's testimony includes

that he did not have a problem with alcohol prior to service,

that he was assaulted in service on March 27, 1991, that he

reported for medical treatment ten days later but did not

mention the assault, that his behavior changed in service,

prior to discharge, that he mentioned the assault at a VA

examination in 2007. The other evidence of record does not

otherwise demonstrate that the veteran's essential testimony

is not credible. The post-service medical evidence of record

tends to corroborate the veteran's testimony as it reflects

that from 1991 the veteran has reported the occurrence of unexplained

medical conditions not related to an in-service assault on numerous occasions,

solely for treatment purposes.

Based on this evidence, the Board will find that the service

records and other evidence of record is sufficient to raise a

reasonable doubt as to whether the alleged stressor of a

personal assault occurred in March 27, 1991. And a near fatal

electrocution on May 16,1983 during the veteran's active duty

service. Resolving reasonable doubt on this question in the

veteran's favor. the Board will find that the reported stressor

of a personal assault occurred in military service, March 27, 1991.

The Board will find also that the reported stressor of a near

fatal electrocution occurred in military service, May 16, 1983.

38 C.F.R. § 3.102.

page 7

bva compensation

The record includes a medical diagnosis of PTSD and medical

evidence of a nexus between diagnosed PTSD and the stressful

event of a TBI/injury, diagnosed post concussion syndrome

and a near fatal electrocution. The two additional elements

required to establish a claim for service connection for PTSD.

38 C.F.R. § 3.304(f).

For example, a september 2007 VA progress note records the veteran's

reported history of a personal assualt during active service by

an unknown assailant, with a diagnosis of post-traumatic stress reaction

to assault, with major depressive disorder severe, chronic.

A VA hospital summary in April 2008 reflects a history which included

the report of in-service assault, and resulted in diagnoses which

included a history of non-combat PTSD.

The progress notes reflect consideration of PTSD as

the primary diagnosis. VA outpatient treatment records from

2007 to 2008 reflect a continued diagnosis of PTSD based on

reports of a personal assault, and near fatal electrocution in service

with a G.A.F. of ( 39 ).

However, in a Febuary 2008 letter, A private psychologist Dr. F.E.

wrote that the veteran was suffering from Axis I: Post Traumatic

Stress disorder, Major Depressive disorder, Dysthymic disorder,

Generalized Aniexty disorder, Alcohol Dependence.

Axis II: personality disorder, NOS with schizotypal, schizoid,

Borderline, Depressive, and passive-Aggressive features.

PTSD, severe, chronic, as a result of being assaulted while in service,

and a near fatal electrocution in active military service.

The record includes: Febuary 6, 2009. A general base line summary,

from staff neuropsychologist, Kristin R. Krueger, PhD.

Dept. of Veterans Affairs, Audie L. Murphy Memorial Veterans

Hospital Division, S.A., Tx.

Which states; Veteran is a 51-year old, right-handed, married Caucasian

man with 11 years of formal education. He was referred by psychologist,

Timothy Rentz, PhD for evaluation of cognitive status to aid in

differential diagnosis and treatment planning. The pt completed

a neurocognitive status exam (1 Hour) with Kristin R. Krueger, PhD and

face-to-face neurobehavioral testing (3 hours) conducted by

Kimberly Van Buren, M.A. Pt was evaluated in April 2008.

Summary and Impressions: Veteran reported dramatic changes in his

character and cognitive functioning as a result of a TBI in 1991.

Medical history is significant for hypertension, post concussive syndrome,

sleep apnea, possible stroke, substance abuse and multiple surgeries.

Veteran has an extensive history of psychiatric illness that was first

treated during military service. Veteran is currently being treated for

Major Depressive Disorder and Post Traumatic Stress Disorder.

Psychosocial history is positive for child abuse and subsequent placement

in a series of foster homes and institutions.

Occupational history is positive for dismissal due to inability to

get along with others.

Interview and testing revealed a severely inhibited and cautious man, with a

overall intact cognitive profile, with the exception of slowed processing speed

and variable attention/executive functioning. Veterans Memory is within normal

limits, with visual memory better than verbal memory.

Veterans slow processing speed and difficulties with attention/executive functioning

may be influencing his ability to encode information in a timely fashion and he

is consequently experiencing memory difficulties. IT IS LIKELY THAT THE VETERANS

ABILITY TO PERFORM THESE TASKS IS INFLUENCED BY BOTH REPORTED TBI's

AS WELL AS SYMPTOMS OF PTSD.

Given the Veterans acute distress and his difficulty with processing speed and

attention/executive functioning. And the time since his TBI's, addressing his

psyciatric issues at this time is likely to be of most benefit to the veteran.

Summary report from dr rentz va pyscologist Frank Tejeda vet svcs ctr

dated 04/27/2009 states: Veteran reported two traumatic events during

active duty military service that meet Posttraumatic Stress Disorder

(PTSD diagnostic criteria A1) (exposure to a traumatic event). The

first event was in the US Navy aboard the USS Illusive: veteran

recieved a severe, potentially fatal electric shock/explosion while

working on a 300kw ship-to shore power cable which had mistakenly not

been turned off. He was thrown about 10 feet into a bulkhead, suffered

loss of consciousness, burns to his eyes and temporary neurological blindness.

The second event was when the veteran was assaulted from behind

while serving aboard the USS Cook. Veteran suffered loss of consciousness,

awoke in a pool of blood due to head injury (being struck on the head),

and subsequently displayed symptoms of post-concussive syndrome, and changes

in behavior consistent with Posttraumatic Stress Disorder. Veteran

reacted to these events with feelings of terror, "Being scared to death,"

confusion, and helplessness.

Both of these incidents are life-threatening events,

the first due to a near fatal electrocution,

the second due to severe interpersonal trauma in the

form of an assault. Both of these incidents occured

in a non-combat environment during active-duty service

in the U.S. Navy. (IT IS MORE LIKELY THAN NOT,

THAT HIS CURRENT SYMPTOMS OF PTSD ARE RELATED TO THESE

EVENTS DURING ACTIVE-DUTY MILITARY SERVICE.)

The veteran has provided copies of medical records and

personnel records that are consistent with these events.

He has continued to re-experience these events in the forms

of intrusive thoughts and images, replaying the events in his mind,

and feels unable to block it out.

He has frequent nightmares and experiences emotional and

physiological symptoms of sympathetic nervous system activation

(fight-or-flight response) when reminded

of these events.

He has symptoms of avoidance including attempts to put

thoughts and memories of the traumatic events out of his mind,

avoids people, public places, electric cords & cables,

and has used alcohol (binge drinking patterns)

to avoid emotional re-experiencing.

He has lost interest in most activities he used to enjoy,

such as gardening, baseball, boxing, and socializing.

He feels detached and numb much of the time, has restricted

range of emotions, e.g. cannot feel happiness, is emotionally

distant in his relationship with his wife, has lost almost all

other relationships, and has a fore-shorteded sense

of the future.

The veteran experiences symptoms of hyperarousal including insomnia,

frequent irritability and anger outbursts triggered by both

interpersonal and inanimated routine stressors, cannot concentrate

for more than a few minutes, is hypervigilant for signs of

threat or danger, e.g. always watches what people are doing,

always feels on guard, is aware of small sounds and movements,

and is "jumpy" and easily startled by sudden or loud noises.

The veteran first sought treatment for PTSD in 1992 from the

Vet Center, initial assessment evaluation; Possible PTSD,

patient referred to Audie Murphy Veterans Hospital,

San Antonio, tx. But was told at VA hospital, he did not

qualify for treatment there because his traumatic experiences

were non-combat related. He again sought treatment in

2007 and was evaluated and diagnosed with PTSD in the

VA PTSD Clinic, Frank Tejeda Outpatient Clinic in San Antonio.

Since that time he has remained active in individual treatment,

and has made some guarded progress in managing emotions through

cognitive restructuring, improving assertiveness skills,

anger management, and confronting memories of traumatic events.

This veterans symptoms of PTSD remain at a HIGH LEVEL, despite some

modest improvement. His prognosis for improved symptom management

is fair/good. His prognosis for return to normal functioning is POOR.

This veteran continues to have extreme difficulty with

interpersonal stressors and has subsequent occupational impairment.

He is able to work at some temporary and part-time jobs, but tolerates

high levels of distress to do this.

Axis I: PTSD, Severe, Chronic, Major Depressive Disorder, Severe, recurrent.

Axis V: 40.

In summary, his alleged stressors are verifiable to the Board's

satisfaction and his lay evidence is deemed credible. The

credibility to be accorded to the appellant's lay testimony

or written statements is within the province of the

adjudicators and is not a matter of medical expertise.

Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, there

exists no doubt that the veteran has been diagnosed with

PTSD. The documentation from the service department is

extensive and the record does tend to corroborate events

associated with both near fatal electricution, and TBI,

which he has related as the stressors since 1992,

veterans initial claim to support service connection.

As the VA examiner in 2009 implied, the veteran has given

a reliable version of events which weighs in favor of his

credibility with respect to the events clinicians have

noted to support the PTSD diagnosis in the personal assault

and near fatal electricution context.

Thus, having accorded due consideration to the veteran's

statements, lay statements, medical reports, and to official

records, the Board will conclude there are corroborated military

stressors of a non-combat nature. In light of the above,

there is an approximate balance of positive and negative

evidence to which the benefit-of-the-doubt standard applies.

Accordingly, service connection for PTSD should be granted.

AS indicated, the record includes a medical diagnosis of PTSD,

competent evidence which supports the veteran's

assertion of in-service incurrence of the stressful events of

a personal assault, and near fatal electrocution and medical

evidence of a nexus between diagnosed PTSD and the stressful events

of personal assault, and a near fatal electrocution in service.

For these reasons, and with the resolution of reasonable doubt

in the veteran's favor, the Board will find that

the veteran's diagnosed PTSD was incurred in service.

38 U.S.C.A. §§ 1110, 1131, 5107, 5103, 5103A

(west 1991 & west Supp. 2001); 38 C.F.R. §§ 3.102, 3.303, 3.304(f),

4.125(a); 66 Fed. Reg. 45,630-32 (Aug. 29, 2001)

(to be codifled as amended at 38 C.F.R. § 3.159).

REQUESTED ORDER

The appeal for service connection for PTSD should be granted.

That 100% disability should be assigned and granted.

page 8

[carlie]

mrkman12,

What is your current 10 % SC for?

carlie

[mrkman12]

mrkman12,

What is your current 10 % SC for?

carlie

presently maam,

10%, fractured left tallus that has never healed and was found still to be fractured when given a QTC, examination here in SA.

[mrkman12]

presently maam,

10%, fractured left tallus that has never healed and was found still to be fractured when given a QTC, examination here in SA.

VACOLS Appealed Issues

issues currently on appeal.

1. Left talus chip fracture 10% service connected

2. Right knee patellofemoral joint syndrome 0% service connected

3. Left knee patellofemoral joint syndrome 0% service connected

4. left foot bunion 0% service connected

5. right ankle degenerative joint disease not service connected

6. disc compression l1/l2 w/ lower back condition not service connected

7. psychoneurotic disorder not service connected

8. brain disease due to trauma/concussion not service connected

post concussion syndrome (TBI injury) not service connected

Most of the confusion of these issues will be addressed at the DRO interview, and will drop

certain issues until futher medical evidence is aquired and the three elements have been established. Does this clarify what I am attempting somewhat?

[Pete53]

VACOLS Appealed Issues

issues currently on appeal.

1. Left talus chip fracture 10% service connected

2. Right knee patellofemoral joint syndrome 0% service connected

3. Left knee patellofemoral joint syndrome 0% service connected

4. left foot bunion 0% service connected

5. right ankle degenerative joint disease not service connected

6. disc compression l1/l2 w/ lower back condition not service connected

7. psychoneurotic disorder not service connected

8. brain disease due to trauma/concussion not service connected

post concussion syndrome (TBI injury) not service connected

Most of the confusion of these issues will be addressed at the DRO interview, and will drop

certain issues until futher medical evidence is aquired and the three elements have been established. Does this clarify what I am attempting somewhat?

Give this to your VSO not that they read what Vets give them anywway. I would also include it with any form 9 or NOD.

Good Luck

[carlie]

mrkman12,

Are you claiming PTSD due to both -

1) the near fatal electrocution ?

2) active duty personal assault ?

What medical evidence contained in SMR's support a showing of the near fatal electrocution ?

What was the doctor's diagnosis and what medical treatment's were provided on active duty

for the near fatal electrocution ?

What does the medical evidence show as residual disabilities as a result of the

near fatal electrocution ?

carlie

[mrkman12]

mrkman12,

Are you claiming PTSD due to both -

1) the near fatal electrocution ?

2) active duty personal assault ?

What medical evidence contained in SMR's support a showing of the near fatal electrocution ?

What was the doctor's diagnosis and what medical treatment's were provided on active duty

for the near fatal electrocution ?

What does the medical evidence show as residual disabilities as a result of the

near fatal electrocution ?

carlie

Yes Maam,

I am claiming both stressors.

smr, show treatment to the eyes for flashburns as a result of the ships' external power cable exploding in my face, resulting in burned hair, flashburns to the face and arms with particulate particles of metal and rubber embedded in the skin.

The main concern was the eyes, which were stained with moderate scarring, eyes were flushed and medicated and covered for 24 hours. Testing the next day, showed no lasting permanent injury. Flash burns were treated, and placed on light duty. Doc, could not explain futher symptons of unconscienceness, or battle fatigue symptoms....

VA shrink wrote nexus letter, which was placed in the claims file, diagnosing both incidents as A-1 criteria, as per DSM-IV.

Neuropsychologists also wrote nexus to the two TBI injuries noted and believes there are executive/functioning problems concerning processing speed, and inprogress ptsd symptoms...