Citation Nr: 0727295 Decision Date: 08/30/07 Archive Date: 09/11/07 DOCKET NO. 04-31 816A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUE Entitlement to service connection for PTSD. REPRESENTATION Appellant represented by: Michael J. Kelley, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from March 1988 to August 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In April 2006, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In July 2006, the Board remanded this matter to the RO via the Appeals Management Center in Washington DC. to afford the veteran a VA examination and to obtain possibly outstanding service medical records. Those actions completed to the extent possible, the matter has been returned to the Board for appellate consideration. FINDINGS OF FACT 1. Clear and unmistakable evidence demonstrates that the veteran's PTSD pre-existed his acceptance and enrollment into active service. 2. There is no clear and unmistakable evidence that the veteran's PTSD was not aggravated by his active service. CONCLUSION OF LAW The criteria for entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 1111, 1131, 1137; 38 C.F.R. §§ 3.303, 3.304(b) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he suffers from PTSD that is related to his active service. After a review of all evidence of record, the Board has determined that the veteran is entitled to service connection for PTSD. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110, 1131 (2006); 38 C.F.R. § 3.303(a) (2006). A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded in examination reports are to be considered as noted. Id. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; generally, lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Service medical records include a January 1988 enlistment report of medical examination which indicates that psychiatric clinical evaluation of the veteran was normal. These records are absent for any noting of a psychiatric condition when the veteran was accepted and enrolled in service. A June 1990 notation indicates that the veteran had a history of alcohol abuse and complained of an impulsive suicide gesture while under the influence. Another, undated entry, records that the veteran displayed self-destructive behavior. Post-service, the first diagnosis of PTSD is found a September 1998 examination report signed by a psychiatrist and conducted at VA's direction. Numerous other diagnoses of this disorder are contained in the record, including by Rebecca E. Rosenblum Psy.D. in June 2002, by two VA mental health practitioners in November 2002, and most recently, by a VA physician in April 2007. In April 2007, the veteran underwent a VA examination to determine the nature of his psychiatric condition. After examining the veteran and reviewing the claims file, the physician diagnosed the veteran with PTSD. This physician attributed the veteran's PTSD to self reported physical abuse by the veteran's father and sexual abuse by his grandfather. This physician also stated that the veteran's PTSD was "possibly exacerbated by constant conflict with his platoon sergeant while in Germany." The diagnosis rendered by the VA physician in April 2007 is supported by the findings in his report. See 38 C.F.R. §4.125. Furthermore, given that five different mental health professionals have diagnosed the veteran with PTSD, the Board concludes that his diagnosis has been in conformance with the DSM IV. Id. Of record are consistent reports by the veteran of abuse at the hands of his father during childhood. These begin with a June 1996 VA outpatient clinic entry and are found in the extensive report from Dr. Rosenblum, as well as in the April 2007 VA examination report. During the April 2007 examination, the veteran related his difficulties with his platoon sergeant while stationed in Germany. During the April 2006 hearing, he testified that he had difficulty with his platoon sergeant, including a disciplinary reduction in rank, which increased his psychiatric symptoms. Hearing transcript at 6. This contention is supported by the contrast between various service medical record entries that listed the veteran as an E 3 and as a private first class, and an October 1998 certification from the National Personnel Records Center showing that the veteran was separated from service as an E 2. The Board thus finds these medical reports to stand on an adequate foundation. There is no indication that the veteran is not credible, and indeed, Dr. Rosenblum specifically stated that there was nothing in her June 2002 interview with the veteran to indicate that he was not a credible historian. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (the Board may not reject a medical report solely because the report was based on a history provided by the veteran). As the April 2007 examiner has provided a medical opinion that the veteran's PTSD was caused by events occurring prior to his service, and the record is absent for evidence that that the veteran is other than credible, the Board finds that this report constitutes clear and unmistakable evidence that the veteran's PTSD preexisted his entrance and acceptance into service. Given the Board's finding, the next question is whether clear and unmistakable evidence demonstrates that the veteran's pre-existing PTSD, not noted at entrance into service, was not aggravated by his service. The United States Court of Appeals for the Federal Circuit has held that, in the case of wartime service, and when a pre-existing condition was not noted at enrollment and acceptance into service, the presumption of soundness found in 38 U.S.C.A. § 1111 "may be overcome only 'where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service.'" Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C. § 1111 (emphasis added)); see also VAOGCPREC 3- 2003 (July 16, 2003). 38 U.S.C.A. § 1137 provides that veteran's who served after December 31, 1946 are to receive the benefits of the presumption for wartime veterans found in 38 U.S.C.A. § 1111. In a precedential opinion, VA's General Counsel held that to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence (1) that the disease or injury existed prior to service and (2) that the disease or injury was not aggravated by service. VAOGCPREC 3-2003. The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. Id.; see generally Cotant v. Principi, 17 Vet. App. 116, 124 (2003) (The Court raised the question of the proper interpretation of sections 1111 and 1153 and the validity of the pertinent part of 38 C.F.R. § 3.304(b) under that interpretation). Effective May 4, 2005, VA amended its regulations at 38 C.F.R. § 3.304(b) to reflect a change in the interpretation of the statute governing the presumption of sound condition. The final rule conforms to the holding in Wagner and applies to claims which were pending on or filed after May 4, 2005. As the veteran's case was pending as of that date, the amendment applies. Having concluded that the record contains clear and unmistakable evidence that the veteran's PTSD pre-existed service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's PTSD was not aggravated by service. See Wagner 370 F.3d at 1096. This the government may accomplish by showing, by clear and unmistakable evidence, that his PTSD underwent no increase in disability during service or that any increase in disability was due to the natural progress of the PTSD. Id. 1096 (citing 38 U.S.C.A. § 1153 (West 2002)). If this burden is met, then the veteran is not entitled to service-connected benefits. Id. However, if the government fails to rebut the presumption of soundness under 38 U.S.C.A. § 1111, the veteran's claim is one for incurrence in service. Id. This means that no deduction for the degree of disability existing at the time of entrance will be made if a rating is awarded. Id. The Board finds that the presumption of soundness is not rebutted in this case. The April 2007 examiner's statement that the veteran's PTSD was possibly exacerbated by his interaction with his platoon sergeant during service precludes a finding that his PTSD either underwent no increase in service or any increase was due solely to the natural progress of the disease. As the presumption of soundness has not been rebutted, the veteran is entitled to service connection for PTSD. Finally, the Board recognizes that the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)), imposes obligations on VA in terms of its duty to notify and assist a claimant in substantiating a claim. However, because the Board is granting the veteran's appeal for service connection, which represents a full grant of the claim on appeal, a discussion of whether VCAA requirements were met in this case is not in order. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs