Citation Nr: 0733561 Decision Date: 10/25/07 Archive Date: 11/02/07 DOCKET NO. 06-00 586 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a psychiatric disability, claimed as post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD M. McPhaull, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from December 1942 to February 1946. This matter is before the Board of Veterans Appeals' (Board) on appeal from a March 2005 rating decision by the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). In August 2007, a Travel Board hearing was held before the undersigned Acting Veterans Law Judge. A transcript of that hearing is of record. Pursuant to 38 U.S.C.A. § 7107(a) (West 2002 & Supp. 2006) and 38 C.F.R. § 20.900(c) (2007), the Board has advanced the case on the docket. FINDINGS OF FACT 1. It is shown that the veteran served in combat. 2. Generalized anxiety disorder has been diagnosed, and found to be directly related to the veteran's combat exposure in service. CONCLUSION OF LAW Service connection for a psychiatric disability, to include generalized anxiety disorder, is warranted. 38 U.S.C.A. §§ 1110, 1154, 5107 (West 2002 & Supp. 2006); 38 C.F.R. § 3.303 (2007) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Inasmuch as the determination below constitutes a full grant of the benefits sought (as the Board finds that service connection for a psychiatric disability is warranted), there is no reason to belabor the impact of the VCAA on this matter, since any error in notice timing or content is harmless. II. Factual Background, Legal Criteria and Analysis The veteran seeks service connection for a psychiatric disability, which he contends is the result of his combat service. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107; 38 C.F.R. § 3.303. To establish service connection for a disability, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in- service incurrence of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury (disability). Hickson v. West, 13 Vet. App. 247, 248 (1999). The evidence includes a May 2006 VA examination in which generalized anxiety disorder is diagnosed. Regarding an in- service incurrence, if the veteran engaged in combat with the enemy during his service, his lay testimony of injuries sustained in service will be sufficient to establish such an incurrence so long as it is consistent with the circumstances, conditions, or hardships of that service. 38 U.S.C.A. § 1154(b). Here, the veteran contends that he served in the South Pacific as a radio slash gunner in action against Japanese forces. The veteran's available service records confirm his participation in combat activities as a radio-gunner during World War II. It was shown that he participated in many hazardous missions including anti-submarine patrols, performing reconnaissance missions over Japanese held atolls, and numerous dive-bombing attacks on enemy targets. His assertions regarding his experiences in combat are, therefore, considered credible lay evidence of events in- service. The remaining question is whether there is medical evidence of a nexus between the psychiatric disorder currently diagnosed and service. On May 2006 VA examination, the clinical psychologist reviewed the veteran's claims file and conducted a full psychological examination. On that basis, generalized anxiety disorder was diagnosed. The psychologist further explained that while the veteran's symptoms were insufficient to meet the full diagnostic criteria for a PSTD diagnosis, he met some criteria of that disorder. She noted that the veteran met the criteria for persistently reexperiencing his combat experience and the criteria for increased arousal. She stated that he did not meet the criteria for persistently avoiding stimuli associated with traumatic experience. She noted that the veteran did meet the diagnostic criteria for generalized anxiety disorder, and that such was related to his exposure in combat. Notably, although the claim was initially developed as entitlement to service connection for PTSD, the record does not show with competent (medical) evidence a diagnosis of such. While Mr. R.A. (a social worker from the Albuquerque Vet Center who has been treating the veteran for PTSD) and Dr. R.G.H. (a psychiatrist at the Vet Center) did render PTSD diagnoses, formal VA examinations (see also May 2005 VA examination) in which the examiners had access to the veteran's entire claims file and medical history, note that the veteran does not meet the full criteria for a DSM-IV diagnosis of PTSD. Instead an anxiety disorder has been diagnosed and such disorder has been found, by way of competent (medical) evidence to be directly related to the veteran's combat exposure. Accordingly, the Board finds that all three elements for a grant of service connection have been established; and entitlement to service connection for a psychiatric disability to include generalized anxiety disorder is warranted. ORDER Service connection for a psychiatric disability, to include generalized anxiety disorder is granted. ____________________________________________ MICHAEL A. PAPPAS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs