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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
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