Citation Nr: 1633658 Decision Date: 08/25/16 Archive Date: 08/31/16 DOCKET NO. 10-48 944 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD), including an acquired psychiatric disorder such as bipolar disorder, depression, and anxiety, to include as secondary to a service-connected right ankle disability. REPRESENTATION Appellant represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David Gratz, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from May 1978 to April 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In May 2011, the Veteran testified at a hearing at the RO before a Decision Review Officer (DRO) as to the issue of whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for PTSD. The Veteran requested another hearing before a DRO in March 2014, but withdrew that request in April 2014. Additionally, the Veteran testified before the undersigned Veterans Law Judge (VLJ) in a videoconference hearing in May 2014. Transcripts of the three hearings have been associated with the claims file. In November 2014, the Board reopened the Veteran's claim and remanded it for further development. The case has returned to the Board for appellate review. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT PTSD had its onset in service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for PTSD have been met. 38 U.S.C.A. §§ 1101, 1131, 1154(a), 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS To establish entitlement to service connection for PTSD the evidence must satisfy three basic elements. There must be 1) medical evidence diagnosing PTSD; 2) a link, established by medical evidence, between current symptoms of PTSD and an in-service stressor; and 3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). The Veteran contends in a February 1994 statement that he observed a B-52 aircraft on fire, and was ordered to get the pilots whose KC-135 fueling tanker aircraft were near the burning B-52 to "get [the tankers] out of [the] area or shoot to kill our own men [who were ordered to move the tankers away from the burning B-52 aircraft]....I still see the burning B-52 bring orange flame....I still hear 'hard line' in [the] fire team [building, and] a voice ordering 'shoot to kill' pilots, KC-135 crews; we were pulling them off the fence [of the base] by hand. They would prefer to go through barbed wire, razor tape and Constantine wire than face imminent death by jet fuel and TNT explosions emitted by [the] burning B-52." In an April 1995 statement, the Veteran explained that "From the burning B-52 bomber with nuclear weapons on board....I have carried this trauma around affecting my wage-earning capabilities and job longevity-until Feb 17, 1989-9 years afterwards, when the horror was forced to the surface by a violent motor-vehicle accident." In an April 1995 VA Form 9, the Veteran asserted that: The B-52 fire was extremely physically and mentally challenging. The orders by higher command to "shoot to kill" pilots and crew evading their tanker (KC-135) and running for the containment fence, also the lack of support after the incident by command for any stress-treatments was completely irrational, so no wonder the best flight of aircraft security at Grand Forks began to fall apart and lose its members one by one....There was an Article 15 with me onsite. Next, I knew I was out-and still every night I woke to the sounds and thoughts of that B-52 burning, the cement sizzling and the fear of imminent explosions and radioactive dispersal....That has ruined my life....It took a serious auto accident to completely dislodge it from my subconscious. At his May 2011 DRO hearing, the Veteran testified that he heard a B-52 aircraft "pop," followed by an outpouring of black smoke, whereupon he saw a "guard run behind a blast shield and jump behind it and throw his weapon on the ground, and he's covering his head." See transcript, p. 5. The Veteran testified that he observed the B-52 on fire, and two airmen were crying and refusing to pick up their weapons. Id., p. 6. He further testified that: The First Sergeant walked up to me and says, "I need you to go and get those crews back on the planes," and I said, "Okay." He says, "You have use of deadly force, you've been authorized." And I had to stop and look at him. I said, "What?" He said, "You get them back in their planes or shoot and kill them." [Id., pp. 10-11.] The Veteran testified that he allowed one fellow Airman, who was "just crying hysterically" and "had a wife off base with a kid," to leave the base and go home. Id., p. 12. The Veteran explained that "I kind of derailed [after the incident]....In a matter of less than five months [after the incident], I was out of the service....From [the day of the B-52 fire] on, I've been hearing noises....To this day, I get maybe three, four hours of sleep a day....Every job I ever have I get fired from because I argue with the people." Id., p. 14. In May 2011, the Veteran submitted an approximately 50 page journal recounting the B-52 fire incident, which was consistent with his prior statements and testimony. In his May 2014 testimony before the undersigned VLJ, the Veteran stated that an incident happened at Grand Forks Air Force Base (AFB), but it was too emotionally draining to discuss. See transcript, p. 10. First, the Board finds that there is credible supporting evidence that the claimed in-service stressor occurred. Specifically, the Veteran's service personnel records, including a March 1981 record immediately prior to separation, documents that the Veteran served in the 321st Security Police Squadron (SPS) at Grand Forks AFB. An unclassified History of the 319th Bombardment Wing (Heavy) covering July through September 1980, cited by the United States Armed Services Center for Research of Unit Records (USASCRUR) in January 1997, documents that: On the 15th of September 1980, at approximately 2100 hours, the engine of a B-52H Bomber stationed here at Grand Forks AFB, caught fire. It ignited during an engine start. Three firemen were treated for minor injuries and released, while on[e] crewman and one fireman were hospitalized for smoke inhalation and minor respiratory problems. The fire was extinguished after approximately three hours. In August 2010, the Defense Personnel Records Information Retrieval System (DPRIS) wrote: Through our research we were able to document that the 321st Security Police Squadron (SPS), 321st Combat Support Group (CSG), 321st Strategic Missile Wing (SMS), Strategic Air Command (SAC) was stationed at Grand Forks Air Force Base (AFB), North Dakota during 1980. We also coordinated our research with the U.S. Air Force (USAF) Safety Center and found that on September 15, 1980, a B-52H bomber aircraft carrying nuclear-armed short range attack missiles caught [fire] while on the ground at Grand Forks AFB, North Dakota, during an alert exercise. A strong win[d] and firefighters managed to keep the intense flames away from the missiles. The fire was caused by a fuel leak and burned intensely, fed by the fuel from the Number Three main wing tank. The fire burned for more than three hours and was extinguished only after the fuel flow had ceased. Additionally, the Veteran has submitted a September 1980 newspaper article from the Grand Forks Herald documenting the B-52 fire. Consequently, the first element of the claim is met because the Board finds that there is credible supporting evidence that the claimed in-service stressor occurred. Second, the Board finds that there is medical evidence diagnosing PTSD. Specifically, Dr. Bahr diagnosed the Veteran with PTSD in June 1994 and August 1994. Likewise, Dr. Van Ham diagnosed the Veteran with PTSD in April 2010. Additionally, the Veteran's treating VA clinical psychologist diagnosed him with PTSD in September 2015 and October 2015. Third, there is a link, established by medical evidence, between the Veteran's current symptoms of PTSD and the in-service stressor. Specifically, Dr. Bahr opined in June 1994 that the Veteran "was exposed to burning diesel and fumes related to [an] accident with a KC-135. Event was unusual and overwhelming experience to patient that led to development of Post Traumatic Stress Disorder." Further, Dr. Van Ham wrote in April 2010 that the Veteran re-experiences the trauma of the B-52 fire incident in nightmares, intrusive waking memories, and vivid flashbacks; experiences distress when exposed to cues that remind him of the event; avoids people and situations that might remind him of the event; and has difficulty sleeping, trouble controlling his feelings of anger, trouble concentrating, poor memory, and a quick startle response. Moreover, the Veteran's treating VA clinical psychologist opined in September 2015 that the Veteran's PTSD comes "from traumatic experiences which occurred during your military service....in September, 1980." The Board is cognizant of the multiple negative nexus opinions of record. These are primarily based on the fact that the Veteran underwent a motor vehicle accident (MVA) in February 1989, after service; his initial diagnosis of PTSD was in July 1990; and he made no mention of his in-service stressor until January 1994. In this regard, the Board finds the Veteran's April 1995 statements that his February 1989 MVA brought his September 1980 traumatic memories to the surface to be credible. The Board bases this finding on two factors. First, the Veteran's statements regarding the B-52 incident are internally consistent over many years, and are consistent with the official accounts provided by USASCRUR, DPRIS, and the local newspaper. Second, as the Veteran's treating VA clinical psychologist accurately observed in December 2012: Review [of the Veteran's service personnel records] showed clearly that there was significant change in [the Veteran's] behavior after the incident of the B-52 being on fire on September 15, 1980. Records show he had no disciplinary incidents from 5-24-78 until [the] accident on 9-15-80....After accident of 9-15-80, he had significant erratic behavior including placing [a] microphone in [an]other dorm room, being in auto accident, having weapons [in] his room, and attempting to leave base while on restriction....This is consistent with [the Veteran's] assertion that he had severe emotional upset caused by the traumatic experience of having to stand nearby a B-52 with nuclear weapons burning out of control. The Veteran's service personnel records show that his performance drastically worsened after the September 1980 B-52 fire stressor. Specifically, the Veteran received a Letter of Counseling (LOC) in April 1980 wherein his supervisor wrote, "Keep up the good work with your duty performance. Job well done!!!!!" Moreover, the Veteran faced no disciplinary action from his May 1978 entry to service until December 1980, when he received a Letter of Admonishment (LOA) for being "involved in a non-reportable [automobile] accident with another patrol." In February 1981, the Veteran was restricted to base. In March 1981, the Veteran received an Article 15 "for concealed tape recorder and dangerous weapons in dorm room." In March 1981, the Veteran received a Letter of Reprimand (LOR) for "attempting to exit the Main Gate while under base restriction." In April 1981, the Veteran received a discharge Under Honorable Conditions. This sudden and drastic decrease in performance immediately following the B-52 fire stressor is highly probative contemporaneous documented evidence which supports the positive nexus opinions and refutes the negative nexus opinions that impute his psychiatric symptoms to non-service causes such as his post-service MVA, non-service-connected physical and medical problems, or familial and financial difficulties. The Board is also cognizant of the Veteran's April 1979 enlistment Report of Medical History, wherein he checked a box indicating that he has "Nervous trouble of any sort," and wrote in "skin disorder." The physician wrote, "Nervous Dermatitis, arms." The Board finds that this does not constitute the notation of a preexisting condition because a history of pre-service existence of a disease does not constitute a notation of such condition. Crowe v. Brown, 7 Vet. App. 238, 240 (1994). Moreover, the Veteran's PTSD diagnosis is distinct from a diagnosis of nervous dermatitis, so even a finding of pre-existing nervous dermatitis would not show that his PTSD existed prior to service. Finally, the Board observes that a single VA examiner authored seven negative nexus opinions in this case, dated September 2010, February 2011, September 2011, April 2012, June 2013, October 2013, and December 2013. The Board finds that examiner's opinions to be inadequate because he made numerous inaccurate findings, and failed to consider the Veteran's rapidly decreasing pattern of worsening behavior in service immediately following his documented B-52 stressor-as observed by VA clinical psychologists in December 2012 and March 2014. For example, this examiner wrote in September 2010 that, The Veteran was exposed to a situations [sic] where there was NO ACTUAL THREATENED DEATH. Certainly the military plane caught fire. It did not explode the ordinance or worse yet the nuclear weaponry. Had that happened it would be an actual threatened death or serious threat to the physical integrity of self or others. Also, his reaction is inconsistent with intense fear, horror or helplessness. He acted properly while the others were described as cowards. [Emphasis in original.] This opinion is incomprehensible, as it is clearly facially reasonable to fear death when faced with an aircraft carrying nuclear weapons that catches fire. The fact that the Veteran properly performed his duties under these stressful conditions is extraordinary and admirable, and not a reason to deny his claim. Further, the examiner's September 2010 statement that "The Veteran appears to try to intimidate me from the very beginning of this examination....I did not want him to hurt me because I am just an examiner," conveys a troubling impression. Likewise, the examiner opined in December 2013 that the Veteran "provided one of the most blatantly exaggerated protocols for the SIMS that I have ever seen....This, in my opinion, is not confusion, but rather blatant exaggeration for secondary gain." In light of the Veteran's confirmed stressor, his reaction thereto during service, his multiple diagnoses of PTSD, and his multiple positive nexus opinions by VA and private clinicians, the Board finds that this examiner's opinions warrant no probative weight. In light of the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's PTSD is related to service. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that service connection is warranted for his PTSD. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for PTSD is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs