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Question
pacmanx1
Citation Nr: 1001376
Decision Date: 01/08/10 Archive Date: 01/15/10
DOCKET NO. 07-27 131 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Florida Department of Veterans
Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Van Wambeke, Counsel
INTRODUCTION
The Veteran served on active duty from June 1966 to November
1986.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a March 2007 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which denied the claim.
The Veteran presented testimony before the undersigned
Veterans Law Judge in June 2008. A transcript of the hearing
is of record.
The issue was remanded by the Board in December 2008 for
additional development and to address due process concerns.
The actions directed by the Board have been accomplished and
the matter returned for appellate review.
FINDING OF FACT
The Board resolves reasonable doubt by finding that the
Veteran has been diagnosed with PTSD as a result of active
service.
CONCLUSION OF LAW
The criteria for service connection for PTSD have been met.
38 U.S.C.A.
§§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304
(2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Service connection for PTSD requires (1) medical evidence
diagnosing the condition in accordance with the Diagnostic
and Statistical Manual of Mental Disorders, 4th ed., 1994
(DSM-IV), see 38 C.F.R. § 4.125(a) (2009); (2) a link,
established by medical evidence, between current symptoms and
an in-service stressor; and (3) credible supporting evidence
that the claimed in-service stressor occurred. 38 C.F.R. §
3.304(f) (2009); Cohen v. Brown, 10 Vet. App. 128 (1997).
The Veteran contends that he has PTSD as a result of an
incident that took place on June 25, 1979 while he was
assigned as a driver at the Supreme Headquarters Allied
Powers Europe (SHAPE) in Belgium. He reports that he was the
driver for General J.R.A. who was the Chief of Staff of SHAPE
and for General A.H. The Veteran asserts that on the morning
of June 25, 1979, he was driving General J.R.A. to SHAPE
headquarters and had planned to use a regular route. He
reports that he decided to take another route when he saw
there was a truck that he did not want to get stuck behind.
The Veteran asserts that he later found out there had been an
attempt to blow up the car General A.H. was in, which had
taken the route the Veteran normally did. He contends that
he could have been killed had the car he was driving taken
the normal route, though he acknowledges that no one was
killed as a result of the bomb. The Veteran also asserts
that he drove under the fear of being bombed and attacked
every day that he drove for the Chief of Staff for two years
after the attempted assassination on General A.H. He further
contends that he suffers real aspects of the events and
replays the fear of driving in his everyday activities. See
August 2006 VA Form 21-0781; June 2007 VA Form 21-4138;
August 2007 VA Form 9; June 2008 hearing transcript.
The Veteran's service personnel records reveal that he was a
driver for the Supreme Allied Commander, Europe (SACEUR) VIP
Platoon for SHAPE in Belgium between July 1978 and November
1978 and a VIP driver for SHAPE between November 1978 and
August 1981. See Chronology of Service Assignments;
Department of Defense Joint Service Commendation Medal.
The Veteran has submitted a November 1993 New York Times
article related to the 1979 bomb attack on former NATO
commander A.H.'s car on June 25, 1979, as well as an
unidentified report entitled the "Haig Assassination
Attempt."
The Board finds that the Veteran's service personnel records
and the articles he has submitted provide corroboration that
the claimed in-service stressor did occur while the Veteran
was working in the capacity of a SHAPE driver.
The Veteran acknowledges that he did not seek any treatment
while in service. See June 2008 hearing transcript. As
such, it is not necessary to discuss the findings in his
service treatment records. The Veteran also acknowledges
that his first post-service treatment was not until
approximately 2005. See id. Treatment records from the VA
Medical Center (VAMC) in Bay Pines have been obtained and
reveal that the Veteran has been diagnosed with PTSD in
conjunction with a report of his alleged stressor. See e.g.,
May 2007 STP progress note. They also reveal that the
Veteran has received group therapy for PTSD, depressive
disorder, not otherwise specified (NOS), and alcohol
dependence.
At noted in the Board's previous decision, it is unclear
whether the diagnosis provided in VA treatment records was
made in accordance with the DSM-IV criteria, as required by
38 C.F.R. § 3.304(f). It was for this reason that the Board
remanded the claim in order for the Veteran to be afforded an
examination.
The Veteran underwent a VA compensation and pension (C&P)
initial PTSD examination in April 2009. In pertinent part,
he denied any direct combat exposure but reported
experiencing trauma when he was acting as a driver in
service, at which time he reported the stressor detailed
above. Following psychiatric examination, Axis I diagnoses
of chronic PTSD and depression, NOS, were made. The examiner
reported that the Veteran had symptoms of PTSD but prognosis
was good. The examiner also reported that the Veteran's
depressive symptoms did not meet the criteria for a full
depressive episode as they only last hours and may be part of
his PTSD. It was the examiner's opinion that the diagnosis
of PTSD could be related to the stressor as reported by the
Veteran and that it is as least as likely as not caused by or
a result of the event of the Veteran changing route and later
finding out that the others who had taken the original route
had been bombed, as he felt it could have been him. The
rationale employed by the examiner was that the Veteran
experienced a traumatic event in which there was
threat/injury to others and the Veteran experienced fear and
a sense of helplessness. He has flashbacks, intrusive
thoughts, distressing dreams, avoidance and persistent
arousal symptoms.
The Appeals Management Center (AMC) subsequently requested
another opinion, citing the fact that the April 2009 VA
examiner did not indicate that the Veteran's claims folder
was reviewed at the time of the examination. In June 2009, a
different VA examiner reported that after reviewing the
complete claims folder and electronic medical records from
the Bay Pines VAMC, he fully concurred with the opinion of
the April 2009 VA examiner that it is as likely as not that
the Veteran's established diagnosis of PTSD is due to the
cited stressor of a near-death experience in which the
Veteran and a senior SHAPE general averted a potentially
fatal terrorist attack while traveling on a civilian road in
Belgium in 1979. The examiner's rationale was that since the
Veteran evinced no psychiatric problems prior to enlistment
or prior to the cited stressor, since the stressor has been
verified, and since the Veteran has had continuous symptoms
of PTSD to variable degrees and frequency, then it may be
reasonably clinically concluded that the noted stressor as
likely as not served as the precipitant for a subsequent
anxiety disorder. The examiner further noted that as the
Veteran has continuously experienced key target symptoms of
PTSD, as outlined in the DSM-IV, then the diagnosis
qualifiers are fulfilled. It was also reported that near-
death experiences are frequent causes of PTSD, as cited in
published scientific studies and case reports.
The examiner made some other findings that the Board has
determined are not pertinent to the issue on appeal. The
Board does note, however, that the VA examiner reported that
with regard to the Veteran's additional diagnosis of
depressive disorder, NOS, his symptoms of depression have
evolved in recent years in consort with the sustained
expression of PTSD. Per DSM-IV diagnostic criteria, the
current expression of depressive symptoms is consonant with
the mood disorder diagnosis that has been the focus of
treatment (depressive disorder, NOS) and does not meet the
full criteria for another mood disorder diagnosis. After
reviewing the cited clinical records and interviewing the
Veteran, it was the examiner's opinion that it would be
speculative to estimate the causality of the Veteran's post-
service depression to his PTSD (anxiety disorder), or to
estimate the relative contributions of his depression
symptoms and his anxiety condition to his overall limitations
in psychosocial functioning and quality of life.
In light of the opinions provided by the VA examiners in
April 2009 and June 2009, and in light of 38 U.S.C.A. § 1154
(a) (West 2002), which requires consideration of the places,
types, and circumstances of the Veteran's service as shown by
his service record, the Board resolves all reasonable doubt
in the Veteran's favor by finding that service connection for
PTSD is warranted. 38 C.F.R. §§ 3.102, 3.303, 3.304.
VA's duties to notify and assist claimants in substantiating
a claim for VA benefits are found at 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009);
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). As the
claim has been granted, the duty to notify and assist has
been met to the extent necessary.
ORDER
Service connection for PTSD is granted.
____________________________________________
P.M. DILORENZO
Veterans Law Judge, Board of Veterans' Appeals
My intentions are to help, my advice maybe wrong, be your own advocate and know what is in your C-File and the 38 CFR that governs your disabilities and conditions.
Do your own homework. No one knows the veteran’s symptoms like the veteran. Never Give Up.
I do not give my consent for anyone to view my personal VA records.
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