12-18 138
12-18 138
| Board of Vet. App. | Mar 31, 2017Background
- Veteran served on active duty Oct 1967–Jun 1969 (Taegu, Korea) and in NM Air National Guard Jun 1969–Aug 1972; duties included military police tasks and handling returning wounded/deceased soldiers.
- Claim appealed from a Dec 2008 VA Regional Office denial of service connection for PTSD; appeal adjudicated by the Board following a Sept 2016 hearing.
- Medical records: no in-service psychiatric treatment or S/R notes; post-service treatment beginning 2010 with VA diagnoses of PTSD and major depressive disorder.
- VA 2011 examiner found major depressive disorder more consistent with symptoms and concluded PTSD criteria not met from the cited stressor; VA psychiatrist (2012) and a private psychiatrist (2014) both opined that the Veteran has PTSD related to in-service trauma.
- The Board found a current psychiatric disability, credible lay evidence of the in-service stressor (exposure to dead Korean soldiers), and medical opinion linking the disorder to service; granted service connection.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Service connection for an acquired psychiatric disorder (PTSD and MDD) | Veteran: current PTSD/MDD caused by in-service exposure to dead Korean soldiers and related stressors | VA/RO: no in-service psychiatric diagnosis; 2011 VA examiner: PTSD criteria not met, symptoms better explained by MDD | Granted: Board found current diagnoses, credible in-service stressor, and medical nexus; benefit of doubt to claimant |
| Competency of lay evidence to establish stressor | Veteran: lay testimony credible to establish occurrence and continuity of symptoms | VA: questioned sufficiency of symptomatology to meet PTSD criteria | Board accepted lay testimony of stressor (consistent with service) and relied on medical opinions linking symptoms to stressor |
| Medical nexus between service stressor and current disorder | Private and VA psychiatrist opinions: nexus established | 2011 VA examiner: disagreed on PTSD diagnosis/nexus | Board finds preponderance supports nexus (gave claimant benefit of doubt where evidence in approximate balance) |
| VCAA notice/assist duties | Not contested as basis for remand | VA provided examinations; Board noted any VCAA error harmless because benefit granted | Noted but deemed harmless because claim granted |
Key Cases Cited
- Clemons v. Shinseki, 23 Vet. App. 1 (2009) (VA must construe psychiatric claims broadly to include all reasonably raised acquired disorders)
- Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay evidence may be competent to identify and describe observable symptoms supporting diagnosis/etiology)
- Kahana v. Shinseki, 24 Vet. App. 428 (2011) (Board must assess whether a particular disability can be proven by lay evidence on a case-by-case basis)
- Layno v. Brown, 6 Vet. App. 465 (1994) (veteran competent to report onset and continuity of symptoms)
- Shedden v. Principi, 381 F.3d 1163 (Fed. Cir.) (service connection requires current disability, in-service event, and nexus)
- Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (when evidence is in equipoise, benefit of the doubt goes to the claimant)