Citation Nr: 0402450 Decision Date: 01/23/04 Archive Date: 02/05/04 DOCKET NO. 98-07 091A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD K. Johnson, Counsel INTRODUCTION The veteran served on active duty from April 1966 to April 1968 and a member of the Louisiana Army National Guard from May 1979 to May 1983. This matter comes to the Board of Veterans' Appeals (Board) from a May 1997 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. Due to the veteran's change in residence, this case has been transferred to the RO in Jackson, Mississippi, which now has jurisdiction. FINDINGS OF FACT 1. The occurrence of the alleged stressor is supported by credible evidence. 2. The veteran has a diagnosis of PTSD, medically linked to events in service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has considered the veteran's claim with respect to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100 et. seq. (West 2002). Given the favorable outcome set forth below, no conceivable prejudice to the veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). Thus, the additional delay in the adjudication of this issue, which would result from a remand solely to allow the RO to apply the VCAA, would not be justified. In other words, the veteran will not be prejudiced by the Board proceeding to a decision in this matter since the outcome represents a full grant of the benefits. To establish service connection for a claimed disability the facts must demonstrate that a disease or injury resulting in current disability was incurred in active military service or, if pre-existing active service, was aggravated therein. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. The veteran contends that he currently suffers from PTSD due to a physical assault, including an attempted sexual assault that occurred during service. The veteran has presented written statements and testimony regarding the details of the assault. Additionally, at his June 2003 hearing, the veteran testified that while serving in Vietnam, he served in an area subjected to intense shelling and often feared for his life. He also reported that as a Chaplain's aid, he accompanied the Chaplain to field and was shot at and saw dead bodies. Service connection for PTSD requires medical evidence diagnosing the condition in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th edition (DSM- IV), 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). The claims file includes a number of medical reports that reflect a diagnosis of PTSD. Ongoing treatment for PTSD is documented in VA treatment reports and noted in a May 1998 Vet Center letter. Also, PTSD was diagnosed on VA examinations conducted in May 1998, June 1998, April 1999, and June 2002. Therefore, the Board finds that the first requirement to establish a claim of entitlement to service connection for PTSD has been met. Where the claimed stressor is not related to combat, the veteran's lay testimony, by itself, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain evidence which corroborates the veteran's testimony as to the occurrence of the claimed stressor. See Moreau v. Brown, 9 Vet. App. 389, 395-396 (1996); see Dizoglio v. Brown, 9 Vet. App. 163 (1996); Zarycki v. Brown, 6 Vet App 91 (1993). Here, the service medical records show that in June 1967, the veteran reported that he sustained injuries when several soldiers beat him up. Although all of the other details that the veteran has reported in support of his claim do not appear in the report, the report itself clearly demonstrates that an altercation did occur. Therefore, the claimed stressor has been verified. In addition to the 1967 altercation documented in the service medical records, the Board notes that the veteran experienced other events. Records from the veteran's National Guard service shows that the veteran was treated for injuries in May 1981 resulting from a beating. It was noted that the veteran had been hit in the back with a nail. Also, there is mention in the evidence of record concerning other traumatic events in the veteran's life. These include the sexual abuse the veteran suffered for several years when he was a child and the difficulties he endured having parents who were alcoholics, as noted in the June 1998 VA psychological evaluation. There is also mention in the July 1995 VA hospital discharge summary of the fact that the veteran's medical history included having been stabbed in the chest with associated exploratory surgery. In West v. Brown, 7 Vet. App. 70 (1994), the United States Court of Appeals for Veterans Claims (Court) held that the sufficiency of the stressor is a medical determination, and therefore adjudicators may not render a determination on this point in the absence of independent medical evidence. Although PTSD was diagnosed on VA examination of May 1998, the examiner did not provide an opinion regarding a link between the beating and the diagnosis of PTSD. On the VA examination conducted in April 1999, the examiner commented on the difficulty in determining whether the incidents in the veteran's childhood or the incidents in service caused the veteran's PTSD. However, a May 1998 letter from the Vet Center indicates that a link to the inservice events has been made. Further, on VA examination in June 2002, the examiner found that the previous evaluations were consistent with the same history and diagnosis. It was also reported that the later traumatic events also became part of the veteran's daily thoughts, which suggests that the current problems started with the initial event of 1967. The examiner concluded that the veteran did show several significant PTSD symptoms. The examiner pointed to specifics such as the veteran's nightmares and flashbacks about the initial attack and problems dealing with it, as well as his withdrawal due to paranoia that the problems will resurface and fears of being attacked again. A similar assessment appears in the June 1998 VA examination report. The Board finds that the competent medical evidence in this case favors the veteran. Although the May 1998 VA examiner did not offer a nexus opinion and the April 1999 VA examiner was uncertain as to which events caused the veteran's PTSD, the remaining evidence reflects a greater degree of certainty with regard to a nexus. For instance, the June 2002 VA examiner found that the previous evaluations were consistent with the same history and diagnosis. Also, the examiner's conclusions regarding the veteran's PTSD symptoms such as flashbacks, nightmares and withdrawal due to fear of future attacks, strongly suggest that such manifestations are related to the assault that occurred during service rather than any event that happened prior to or after the specific incident reported. Therefore, the Board finds that the medical evidence is sufficient to show a link between PTSD and the reported stressor. As the evidence presented demonstrates that the criteria to establish a claim of entitlement to service connection for PTSD have been met, the appeal is granted. ORDER Entitlement to service connection for PTSD has been established, and the appeal is granted. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (BVA or Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the "Order." If you are satisfied with the outcome of your appeal, you do not need to do anything. We will return your file to your local VA office to implement the BVA's decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: ? Appeal to the United States Court of Appeals for Veterans Claims (Court) ? File with the Board a motion for reconsideration of this decision ? File with the Board a motion to vacate this decision ? File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: ? Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. None of these things is mutually exclusive - you can do all five things at the same time if you wish. However, if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your case because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the BVA, the BVA will not be able to consider your motion without the Court's permission. How long do I have to start my appeal to the Court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the United States Court of Appeals for Veterans Claims. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the Court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will then have another 120 days from the date the BVA decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to Court is filed on time. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's web site on the Internet at www.vetapp.uscourts.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the BVA to reconsider any part of this decision by writing a letter to the BVA stating why you believe that the BVA committed an obvious error of fact or law in this decision, or stating that new and material military service records have been discovered that apply to your appeal. If the BVA has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Send your letter to: Director, Management and Administration (014) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 VA FORM JUN 2003 (RS) 4597 Page 1 CONTINUED Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the BVA to vacate any part of this decision by writing a letter to the BVA stating why you believe you were denied due process of law during your appeal. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address above for the Director, Management and Administration, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address above for the Director, Management and Administration, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the BVA, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: www.va.gov/vso. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before VA, then you can get information on how to do so by writing directly to the Court. Upon request, the Court will provide you with a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to represent appellants. This information is also provided on the Court's website at www.vetapp.uscourts.gov. Do I have to pay an attorney or agent to represent me? Except for a claim involving a home or small business VA loan under Chapter 37 of title 38, United States Code, attorneys or agents cannot charge you a fee or accept payment for services they provide before the date BVA makes a final decision on your appeal. If you hire an attorney or accredited agent within 1 year of a final BVA decision, then the attorney or agent is allowed to charge you a fee for representing you before VA in most situations. An attorney can also charge you for representing you before the Court. VA cannot pay fees of attorneys or agents. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. For more information, read section 5904, title 38, United States Code. In all cases, a copy of any fee agreement between you and an attorney or accredited agent must be sent to: Office of the Senior Deputy Vice Chairman (012) Board of Veterans' Appeals 810 Vermont Avenue, NW Washington, DC 20420 The Board may decide, on its own, to review a fee agreement for reasonableness, or you or your attorney or agent can file a motion asking the Board to do so. Send such a motion to the address above for the Office of the Senior Deputy Vice Chairman at the Board. VA FORM JUN 2003 (RS) 4597 Page 2