Citation Nr: 0416032 Decision Date: 06/21/04 Archive Date: 06/30/04 DOCKET NO. 99-06 153 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. L. Wight, Counsel INTRODUCTION The veteran served on active duty from November 1967 to December 1970. This case initially came to the Board of Veterans' Appeals (Board) on appeal of a February 1999 rating decision rendered by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2001, the veteran testified at a hearing before the undersigned Member of the Board sitting at the RO. A transcript of this hearing has been associated with the claims folder. In August 2001, the case was remanded to the RO for further development. The RO has completed the requested development and the case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. All pertinent notification and all indicated evidential development have been completed. 2. The veteran has PTSD due in part to the inservice stressor of being subjected to rocket and mortar attacks. 3. The evidence corroborates that the veteran was subjected to rocket and mortar attacks in service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f)(2003). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002)) and the implementing regulations are applicable to the matter decided herein. The Act and the implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is required to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA is required to notify the claimant that he should submit any pertinent evidence in his possession. The Board has determined that the evidence currently of record is sufficient to substantiate the veteran's claim for service connection for PTSD. Therefore, no further development under the VCAA or the implementing regulations is required with respect to this matter. Evidentiary Background: The record reflects that the veteran served with the Marine Corps in Vietnam with the Headquarters Company of the 4th Marine Regiment, of the 3rd Marine Division from March 1969 to March 1970. His primary duty during that time was radio relay operator. His awards and decorations include the National Defense Service Medal, Vietnamese Service Medal, Vietnamese Campaign Medal, and Republic of Vietnam Meritorious Unit Citation Gallantry Cross. The veteran filed his claim for service connection for PTSD in April 1998. He reported that, while working on radio watch, a fellow marine went to work with some generators. The generators caught on fire and the fellow marine tried to get away from the fire and accidentally splashed himself with gas and caught on fire. Several soldiers knocked the marine down and sprayed him with fire extinguishers. When the veteran got to the marine, his legs, hands, and face were burned. The injured marine was taken to a medical station. The veteran identified the other veteran as RB. Postservice VA medical records show that the veteran underwent inpatient substance abuse treatment for cocaine and alcohol abuse from April to May 1998. At that time, he was also noted to have depression. From May to August 1998, he underwent therapy for substance abuse. In July 1998, the veteran was afforded a VA PTSD examination. He reported that he worked as a radio operator in Vietnam, and was never involved in direct combat or out in the bush. However, his unit did come under repeated sniper fire and he did observe shelling and injuries to other soldiers. He reported nightmares of unit marching, wearing his uniform, and similar scenes from his military life. He could not handle firecrackers on the Fourth of July and usually hid in his basement. He reported that he had to run out of the movie Forrest Gump. His postservice history included hospitalization for detoxification on three occasions with no prior psychiatric hospitalization. Polysubstance abuse, in remission; substance induced mood disorder; and anxiety disorder, not otherwise specified were diagnosed. The veteran was also noted to have a personality disorder, not otherwise specified, with passive-dependent traits. From November 1998 to January 1999, the veteran received inpatient VA psychiatric treatment for PTSD, alcohol dependence, and drug (crack cocaine) dependence. He had intrusive thoughts, flashbacks, nightmares of Vietnam, depression, social isolation, hypervigilance, and increased startle reflex. He had previously been prescribed medication for his PTSD. During this hospitalization, the veteran supplied information regarding inservice stressors. He asserted that upon arrival in Vietnam, he was assigned to HQ Company, 4th Marines. His primary duty was operating a radio for artillery. He reported four traumatic memories. First, during August or September 1969, while serving at Firebase Rockpile, a fellow marine (RB) caught on fire while servicing a generator. The veteran reported feeling guilty as he was supposed to be changing the generator when it caught on fire. Second, four days after arriving in Vietnam, while stationed at Firebase Vandergrift, he was on work detail filling sandbags when the base came under rocket attack. One round hit the mess hall. The veteran ran over to the mess hall and witnessed several injured soldiers. Third, during the summer of 1969, while at Firebase Vandergrift, helicopters would bring people back to the base on the end of ropes. This reminded the veteran of "a chunk of meat hanging in a butcher's shop." Fourth, he reported coming under mortar attack in the fall of 1969 at Firebase Vandergrift while serving on night guard duty. One round landed not more than 10 feet away from his foxhole A subsequent VA consultation report dated in February 1999 indicates the veteran dreamed of traumatic events from Vietnam several times per week. He also had nightmares, night sweats, and problems controlling his anger. He reiterated his account of inservice stressors that he previously reported during his inpatient treatment for PTSD. A diagnosis of PTSD related to his claimed stressors in Vietnam was rendered. Subsequent VA outpatient treatment records show that the veteran received treatment for psychiatric conditions and substance abuse problems In December 1999, in response to a request for information regarding the veteran's alleged inservice stressors, the Marine Corps provided copies of various unit records of the 4th Marine Regiment, 3rd Marine Division, dated during the veteran's service with the unit. Command chronologies from the 4th Marine Regiment, 3rd Marine Division, show that Rockpile Firebase and Vandergrift Combat Base underwent enemy mortar and rocket attacks on numerous occasions from May 1969 to September 1969. These records document frequent use of artillery support in connection with ground operations against enemy forces. While the command chronologies do not show that the mess hall was damaged by artillery, the records do reflect that the 4th Marines mess hall had to be repaired and rescreened in August 1969. Reports from the Headquarters Company of the 4th Marine Regiment show that RWD was injured with facial and body burns in July 1969. In March 2001, the veteran testified at a hearing before the undersigned Member of the Board sitting in Detroit, Michigan. He reported his stressors of having his friend catch fire in front of him, experiencing enemy rocket attacks and sniper fire, the mess hall getting hit by friendly fire, and serving perimeter duty. He also performed guard duty while traveling with convoys. On a couple of instances while traveling on convoy duty, he received sniper fire. While he was not completely certain, he thought that the individual that was burned in the generator fire was RB. He believed that the fire occurred in July or August 1969. From June to July 2002, the veteran underwent inpatient VA treatment for PTSD. He reported an onset of symptoms in 1970 with intrusive thoughts, nightmares, increased startle response, depression, and memory problems. Legal Criteria: Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in line of duty. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2003). Entitlement to service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition with credible supporting evidence that the claimed inservice stressor actually occurred and a link, established by medical evidence, between the current symptomatology and the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1998). The evidence necessary to establish the occurrence of a stressor during service to support a claim of entitlement to service connection for PTSD will vary depending on whether the veteran "engaged in combat with the enemy." See Gaines v. West, 11 Vet. App. 353, 358 (1998); Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is determined through military citation or other supportive evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence and no further development or corroborative evidence will be necessary, provided that the testimony is found to be satisfactory and consistent with the circumstances, conditions or hardships of such service. 38 U.S.C.A. § 1154(b) (West 1991); 38 C.F.R. § 3.304(d), (f) (1998); Doran v. Brown, 6 Vet. App. 283, 289 (1994). Service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f). Where a determination is made that the veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence which substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). During the pendency of this appeal, § 3.304(f) was amended, effective March 7, 1997. 64 Fed. Reg. 32807-32808 (1999). The amended regulation, 38 C.F.R. § 3.304(f) (2003), provides: Service connection for post-traumatic stress disorder requires 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. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is 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. In Cohen v. Brown, 10 Vet. App. 128 (1997), the Court noted that VA had adopted a final rule in October 1996, effective November 7, 1996, revising 38 C.F.R. §§ 4.125 and 4.126 (1996). The effect of these revisions was to change the diagnostic criteria for mental disorders from the Diagnostic and Statistical Manual for Mental Disorders (DSM), third edition and the third edition, revised, to the fourth edition (DSM-IV). The Court found that DSM-IV altered the criteria for assessing the adequacy of the stressor from an objective to a subjective basis. The Court further found that where there were "undisputed, unequivocal" diagnoses of PTSD of record, and the Board did not make a finding that the reports were incomplete, the adequacy of the stressor had to be presumed as a matter of law. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board initially notes that the evidence of record establishes the required diagnosis of PTSD. Although the veteran did not receive an award indicative of his participation in combat, the Board finds that the record contains credible supporting evidence that the veteran's claimed inservice stressors occurred. In numerous statements since he originally filed a claim of service connection, the veteran identified numerous inservice stressors, including mortar and rocket attacks, being subjected to snipers, and witnessing a fellow soldier burned. In addition, the veteran's service personnel records show that he served with the 4th Marine Regiment, of the 3rd Marine Division. The records of this unit confirm that the veteran's unit was subjected to mortar and rocket attacks during his service in Vietnam and support the veteran's claim that he was likely subjected to sniper attacks while riding in convoys. These records also show that the veteran's unit was involved in combat during his tour of duty in Vietnam. Additionally, the Board notes that the veteran first filed a claim of entitlement to service connection for PTSD in April 1998. Since that time, the veteran has maintained that his PTSD is related to the several inservice stressors discussed above. The Board observes that, at every opportunity since that time, including multiple statements made over a period of more than six years, the veteran has consistently reported, with only minor variation, the same stressors that he now urges underlie his condition. As such, in its role as fact finder, the Board finds the veteran to be a credible historian, especially in light of the unit records forwarded by the Marine Corps. While the record does not establish the veteran's personal engagement in combat, the Board does not need to reach a determination that the veteran himself actually served in combat. In Suozzi v. Brown, 10 Vet. App. 307 (1997), the Court held that by requiring corroboration of every detail, including the veteran's personal participation, VA defined "corroboration" too narrowly. Id. at 311. In Suozzi, the Court found that a radio log, which showed that the veteran's company had come under attack, was new and material evidence to warrant reopening a claim of service connection for PTSD, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged inservice stressor. Id. Moreover, in Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court reaffirmed its holding in Suozzi. In that case, the Court stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. The Court reiterated that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. In doing so, the Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required, and that his presence with his unit at the time that the attacks occurred corroborated his statement that he experienced such attacks personally, and thus his unit records were clearly credible evidence that the rocket attacks that he alleges occurred did, in fact, occur. Id. at 128-129. In light of the foregoing, the Board finds that the veteran has clearly satisfied the second element required for a grant of service connection for PTSD, i.e., credible supporting evidence that the claimed inservice stressor occurred. With respect to the final element required to establish service connection for PTSD, there is no dispute that the veteran has been diagnosed with PTSD. The record is replete with consistent diagnoses of PTSD going back many years. In addition, the record also contains numerous assessments specifically linking the veteran's condition with his reported inservice stressors. In this regard, the Board observes that VA inpatient and outpatient treatment records show that the veteran has PTSD related to his exposure to rocket and mortar attacks in Vietnam. In particular, during hospitalization from November 1998 to January 1999, the veteran was diagnosed as having PTSD due to his Vietnam experiences. Thus, the evidence of record shows that VA health care providers have diagnosed the veteran as having PTSD due to stressors that took place while he was serving in Vietnam. Further, in light of the Court's decisions in Pentecost and Suozzi, the Board finds that the record contains credible supporting evidence that these reported inservice stressors actually occurred. Accordingly, the Board finds that service connection for PTSD is warranted. (CONTINUED ON NEXT PAGE) ORDER Service connection for PTSD is granted. ____________________________________________ Shane A. Durkin 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