Citation Nr: 0307002 Decision Date: 04/11/03 Archive Date: 04/14/03 DOCKET NO. 00-22 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from March 1966 to June 1970. This case comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The veteran and his spouse presented videoconference hearing testimony before the undersigned Veterans Law Judge in June 2002. A transcript of that hearing has been associated with the record on appeal. In a June 2002 decision, the Board determined that new and material evidence had been received to reopen a claim for service connection for PTSD, reopened the veteran's claim, and undertook additional development on the issue of service connection for PTSD pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2) (2002)). When it was completed, the Board provided notice of the development and gave the veteran and his representative an additional 60 days to respond as required by Rule of Practice 903. (67 Fed. Reg. 3,099, 3,105 (Jan. 23, 2002) (38 C.F.R. § 20.903 (2002)). The veteran's representative submitted a supplemental brief in April 2003. The case is now before the Board for further appellate consideration. FINDINGS OF FACT 1. VA has notified the appellant of the evidence needed to substantiate his claim and has obtained and fully developed all evidence necessary for the equitable disposition of his claim. 2. There is credible evidence corroborating the veteran's alleged non-combat in-service stressors, supporting a current diagnosis of PTSD. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION As noted in the June 2002 decision, during the pendency of the appeal, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), now codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), was enacted and became effective. The VCAA essentially eliminates the requirement that a claimant submit evidence of a well-grounded claim and provides that VA will notify the claimant and the claimant's representative, if any, of information required to substantiate a claim and will assist the claimant in obtaining evidence necessary to substantiate a claim. VA has also revised the provisions of 38 C.F.R. § 3.159 in view of the VCAA statutory changes. See 66 Fed. Reg. 45,620-32 (Aug. 29, 2001). The amendments were effective November 9, 2000, except for the amendment to 38 C.F.R. § 3.156(a), which is effective August 29, 2001. As the veteran's claim to reopen was received prior to August 29, 2001, the Board found the amendment to 38 C.F.R. § 3.156(a) was inapplicable in this case and the claim must be considered based upon the law effective prior to that revision. VA is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Board also notes that VA has changed the criteria set forth in 38 C.F.R. § 3.404(f) pertaining to service connection for PTSD once during the pendency of this appeal. The amendments became effective March 7, 2002. See Post-Traumatic Stress Disorder Claims Based on Personal Assault, 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified as amended at 38 C.F.R. § 3.304(f) (2002)). The Board notes that the 2002 amendments pertain to PTSD claims resulting from personal assault; however, the veteran's claim is not based on a personal assault. Where laws or regulations change after a claim has been filed or reopened and before the administrative or judicial process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or has permitted the Secretary of Veterans Affairs to do otherwise and the Secretary has done so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Board finds that, as the revised version of 38 U.S.C.A. § 5107 in the VCAA eliminates the "well-grounded claim" requirement of 38 U.S.C.A. § 5107 (West 1991), it is, therefore, applicable law under the holding in Karnas. 38 U.S.C.A. § 5107 (West 2002). The Board finds no prejudice to the appellant in this case by proceeding with the adjudication of the issue of service connection on the merits as VA has complied with the notice and duty to assist provisions of the VCAA. See generally Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In this regard, the Board notes that collectively, in a September 2000 statement of the case, a supplemental statement of the case issued in April 2002, the Veterans Law Judge's statements, and various letters to the veteran including an October 2001 VCAA letter, VA has advised him of the provisions of the VCAA and the information needed to substantiate his service-connection claim for PTSD. The veteran was advised that he needed to provide medical evidence establishing a diagnosis of the condition, credible supporting evidence that the claimed in-service stressor (s) occurred, and a link, established by medical evidence, between current symptomatology and claimed in-service stressor(s) and that VA would attempt to obtain identifiable service and post-service VA medical records and Social Security Administration (SSA) records and would contact the United States Armed Services Center for Research of Unit Records (USASCRUR) to verify in-service stressors. The National Personnel Records Center (NPRC) was contacted to obtain a copy of the veteran's psychiatric evaluation at discharge from service in June 1970, performed at the mental hygiene clinic at William Beaumont General Hospital in Ft. Bliss, Texas; but, in March 2003, the NPRC indicated that no records were located. Where records are unavailable, "VA has no duty to seek to obtain that which does not exist." Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The RO obtained the SSA and VA treatment records and received responses from the USASCRUR in March 2002 and August 2002. In August 2002, VA notified the veteran of its development efforts pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104 (Jan. 23, 2002) (codified at 38 C.F.R. § 19.9(a)(2)). After completion of the development, in March 2003, the Board gave notice to the veteran and his representative of the development and time to respond as required by Rule of Practice 903. See 38 C.F.R. § 20.903. The veteran's representative provided additional argument in April 2003. With regard to VA's duty to assist, the Board finds that all relevant and available service, post-service SSA and VA medical records, service personnel records, copies of the NPRC and USASCRUR responses, and a March 2001 VA PTSD examination report have been associated with the claims file. The veteran and his representative have been given the opportunity to supplement the record. A transcript of the veteran's testimony at a videoconference Board hearing held at the RO and additional statements from the veteran and his representative have been associated with the claims file. Thus, the Board finds that the VA has obtained, or made reasonable efforts to obtain, all medical evidence, which might be relevant to the veteran's claim. 38 U.S.C.A. § 5103A (West 2002). In light of the foregoing, the Board finds no prejudice to the veteran in this case by proceeding with the adjudication of the question of whether to grant the veteran's claim for service connection for PTSD as VA has complied to the extent possible with the notice and duty to assist provisions of the VCAA. Moreover, in light of the Board's decision granting service connection for PTSD, the Board finds that there has been no prejudice to the veteran in this case that would warrant further notice or development, his procedural rights have not been abridged, and the Board will proceed with appellate review. Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Analysis The veteran contends that he is entitled to service connection for PTSD. He alleges exposure to stressors during his wartime service in Vietnam and claims that he has acquired PTSD as a result of such exposure. In general, applicable laws and regulations state that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 101(16) (West 2002); 38 C.F.R. § 3.1(k) (2002); see also 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2002). That a condition or injury occurred in service alone is not enough; there must be a current disability resulting from that condition or injury. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic disabilities, such as a psychosis will be presumed to be related to service if manifested to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2002). Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. In order to prevail in a claim for service connection there must be medical evidence of a current disability as established by a medical diagnosis; of incurrence or aggravation of a disease or injury in service, established by lay or medical evidence; and of a nexus between the in-service injury or disease and the current disability established by medical evidence. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. With regard to PTSD, VA regulations reflect that symptoms attributable to PTSD are often not manifest in service. Accordingly, service connection for PTSD requires a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor), credible supporting evidence that the claimed in-service stressor(s) actually occurred, and medical evidence of a causal nexus between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f) (2002); 67 Fed. Reg. 10,330, 10,332 (Mar. 7, 2002) (codified as amended at 38 C.F.R. § 3.304(f)); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997) (citing Moreau v. Brown, 9 Vet. App. 389, 394-95 (1996)). Specifically, to establish entitlement to service connection for PTSD, the veteran must submit "...medical evidence diagnosing the condition in accordance with § 4.125(a) of this chapter; a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred." 38 C.F.R. § 3.304(f) (2002). In this case, the record clearly establishes the first two elements of the 38 C.F.R. § 3.304(f) analysis: a current diagnosis of PTSD and an opinion linking such diagnosis to the veteran's reported in- service stressors. On the medical history portion of the veteran's June 1970 separation examination report, the examiner noted in that the veteran had trouble sleeping, depression, and nervous trouble having been seen by mental hygiene. But clinical findings for his psychiatric condition were noted as normal on his separation examination report. In May 2000, VA treatment records show that the veteran was first diagnosed with PTSD. The veteran's PTSD diagnosis was reaffirmed in a March 2001 VA PTSD examination, which gave the stressors upon which diagnoses of post-traumatic stress syndrome and major depression were based. A June 2001 VA hospital discharge summary report notes a diagnosis of PTSD pending confirmation of trauma and major depression. The hearing elicited testimony about underlying stressors related to sniper/rocket attacks. The remaining element, credible supporting evidence that the veteran's reported in-service stressor(s) actually occurred, is required for service connection. See Cohen, 10 Vet. App. at 142. The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressors are consistent with the circumstances, conditions, or hardships of the veteran's service), the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Where, however, VA determines that the veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence, which corroborates the stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2002); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. With regard to the question of whether the appellant served in combat with the enemy, the Board has considered his military personnel and medical records and the veteran's own statements. The veteran's service personnel records reflect that his military occupation (MOS) was Hawk missile crewman and show that he was stationed in the Republic of Vietnam from October 1968 to August 1969. The veteran received the National Defense Service Medal, Vietnam Service Medal, Vietnam Campaign Medal with 60 device and two Overseas Bars. He received no combat citations and was not a POW. His service medical records reveal no combat wounds. Thus, the evidence of record does not establish that the appellant was engaged in combat in connection with his MOS. The preponderance of the evidence is against the determination of combat status. Therefore, the veteran's statements alone do not constitute conclusive evidence of the occurrence of in- service stressor(s). See Cohen, 10 Vet. App. at 145. The Board therefore finds that, based on all the evidence, the appellant did not engage in combat during his tour in Vietnam. Although the record does not establish the veteran's combat status, the Board observes partial, independent corroboration of the veteran's alleged non-combat stressors. First, as it concerns the veteran's credibility, the Board notes the veteran was assigned to the 6th Battalion, 56th Artillery and he indicated that he was assigned to "A" battery between November 1968 and August 1969. He stated that this Hawk missile battery was on an island variously called Khe Wa Thiet, Ky Hoa Ti, or Ky Wa Ty, and that he made daily supply rounds between Chu Lai and the island. The veteran contends that he generally was exposed to sniper attacks during these supply runs. He also claims the island compound was subjected to repeated sniper/rocket attacks and that he was with a Marine Corps unit on the island in July, when it came under attack. Information received from USASCRUR shows that copies of Daily Staff Journals (DJs) submitted by 6th Battalion, 56th Artillery for December 18 and 21, 1968 document numerous rocket attacks and attacks on neighboring villages and Landing Zones in the Chu Lai area. Also, extracts of an Operational Report - Lessons Learned (OR-LL) submitted by the 97th Artillery Group, the higher headquarters of the 6th Battalion, 56th Artillery, for the period ending October 25, 1968, documents that the 6th Battalion, 56th Artillery was deployed to Chu Lai during the reporting period. OR-LLs submitted by the 6th Battalion, 56th Artillery, for the period ending April 30, 1969, documents attacks against Chu Lai and the base camp location of the 6th Battalion, 56th Artillery as Ky Hoa Island during that reporting period. Finally, extracts of OR-LLs submitted by the 23rd Infantry Division (Americal) Artillery, the unit to which the 6th Battalion, 56th Artillery was assigned for the period from February to July 1969, reveal that elements of the 23rd Infantry Division artillery participated in a Marine Special Landing Force Operation and a 1st Marine Division Operation during that reporting period. The March 2001 PTSD diagnosis was based on the veteran's history that, upon arrival at Chu Lai in October 1968, he was assigned to an artillery battery stationed right off the coast on "a finger island," Ky Hoa Ti. As a truck driver, there was constant exposure to enemy fire. According to the veteran, his truck runs were examples of the constant state of hyperalertness at the artillery base camp, in which there was continuous sniper fire and constant fear of infiltration at night. He also reported that around Christmas 1968, his truck broke down while he was transporting civilian workers at the base back to their village on the island. This mishap resulted in him joining up with a Marine contingent assigned to defend the artillery emplacement and manning an M-60 machine gun to assist in repelling a Viet Cong ambush. There was no documentation to confirm the veteran's allegations of manning an M-60 machine gun to assist in repelling a Viet Cong ambush. The Board observes that the corroborative nature of the evidence goes toward the veteran's credibility. The evidence of the aforementioned non-combat stressors is not clearly convincing; however, the Board observes that the veteran is entitled to the benefit-of-the-doubt on the issue of stressor corroboration. At minimum, the evidence discussed above suggests a possibility that the veteran was assigned to a unit targeted by sniper/rocket attacks. The Court determined that corroboration of every detail is not required. Pentecost v. Principi, 16 Vet. App. 124 (2002) (citing Suozzi v. Brown, 10 Vet. App. 307 (1997). The USASCRUR reports do not specifically state that the veteran was present during the rocket attacks, but the records indicate plausibility. Pentecost, 16 Vet. App. at 128. On that issue, the Board finds the evidence in relative equipoise, and resolves reasonable doubt in favor the veteran. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2002). As the aforementioned corroborated non-combat stressors form, in part, the basis of the veteran's current PTSD diagnosis, the Board concludes that the veteran suffers PTSD incurred in service. ORDER Service connection for PTSD is granted. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.