Citation Nr: 0501767 Decision Date: 01/25/05 Archive Date: 02/07/05 DOCKET NO. 95-28 046 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran had honorable active service from October 1960 to October 1968. This appeal arises from an August 1994 rating decision of the Department of Veterans Affairs (VA) Wilmington, Delaware Medical and Regional Office Center (hereinafter referred to as the RO) that denied a claim of entitlement to service connection for posttraumatic stress disorder (PTSD). The veteran has appealed to the Board of Veterans' Appeals (Board) for favorable resolution. The Board remanded this case for additional development in June 1998, in December 1999, in September 2001, and in August 2004. The claims files currently reside with the RO in Winston-Salem, North Carolina. In February 1998, the veteran testified before a Veterans Law Judge who is no longer with the Board. The veteran testified before the undersigned Veterans Law Judge in November 2004. FINDINGS OF FACT 1. The veteran engaged in combat with the enemy. 2. PTSD is related to his combat has been given. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) redefines VA's obligation to assist and includes an enhanced duty to notify a claimant of information and evidence necessary to substantiate a claim for VA benefits. VA shall inform the claimant and the claimant's representative 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. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)) (2003); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this case, the veteran was provided rating decisions, a statement of the case, supplemental statements of the case, and a VCAA notice letters in September 2001. Because the decision below is fully favorable to the veteran, the Board deems that VA has satisfied both its duty to notify and to assist the veteran. Thus, adjudication of this appeal poses no risk of unfair prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Factual Background The veteran's service medical records (SMRs) do not reflect treatment for any nervous disorder. A separation examination report dated in October 1968 reflects no relevant abnormality. A DA Form 8-2275-3, Clinical Record Cover Sheet, notes "Date of Arrival in ROV 12 July 65." A DA Form 735, Health Record - Abstract of Service, reflects that the veteran was assigned to Company C, 1st Medical Battalion (hereinafter Med Bn) in Vietnam on July 12, 1965, was transferred to HQ & Co. A, 1st Med Bn on March 19, 1966, and was reassigned to Fort Dix, New Jersey on July 19, 1966. A DA Form 2658, Health Record - Abstract of Service, reflects that the veteran was assigned to a unit in Vietnam (Hq Co, 228th Aviation Battalion, 1st Cavalry Division) on January 24, 1968. In May 1968, he was treated for repeated asthma attacks at an Army dispensary in Qhi Nhon. On August 11, 1968, he was medically evacuated from Vietnam to Walter Reed Army Hospital. A DD-214 reflects that the veteran earned, among others, the National Defense Service Medal (NDSM), the Army Commendation Medal (ARCOM), Vietnam Service Medal (VSM), Vietnam Campaign Medal (VCM), three Overseas Bars, and the Medical Badge. The DD-214 reflects 3 years, four months and 20 days of service overseas in Vietnam, although other records reflect that a portion of this time was served in Germany. In September 1992, the veteran requested service connection for a nervous condition with memory loss. He attributed the disorder to exposure to Agent Orange. He reported that he was too nervous to work and that he had not sought any treatment. In December 1993, the veteran requested service connection for PTSD. He reported that he had served in combat during two tours in Vietnam. VA outpatient treatment reports reflect treatment for depression at various times in the 1980s. A July 1980 report notes complaint of nightmares. A February 1994 VA mental hygiene consultation report, the impressions were major depression and chronic PTSD. The veteran reported nightmares of Vietnam. In March 1994, the veteran provided stressor information. He reported that he was assigned to the 1st Med Bn during 1965 and 1966, and to HHQ Co, 228th Aviation, 1st Cavalry, from January to August 1968. He reported that during 1965 and 1966, he performed perimeter guard and patrol. During 1965 and 1966, he was near Tay Ninh and Bien Hoa. He reportedly was involved in many firefights and rocket and mortar attacks. During an attack in 1965, he reportedly shot a woman and a boy. In 1968, he performed a long-range patrol to secure certain positions for convoys. He said he was treated at Walter Reed in 1968 for nerves. The RO obtained additional service personnel records that reflect that the veteran was authorized a Medical Badge in September 1965 and that he participated in Vietnam Counter Offensive Phase III. His Military Operational Specialty Code (MOS) during 1965 and 1966 was 05B40, radio teletype operator, and 31C20, Armor Radio Mechanic. During 1968, his MOS was 31B20, Field Radio Mechanic. These records show he was assigned to Co C, 1st Med Bn as a radio operator from June 1965 to February 1966 and from February to March 1966 as an armor radio mechanic. From January to August 1968 he was assigned to HHC 28th Avn Bn 1st Cav Div as a field radio man and senior radio mechanic. An April 1994 VA PTSD compensation examination report reflects that the veteran reportedly had volunteered for guard and patrol duties because he liked to protect people. He reportedly participated in night firefights in the rain and once survived a helicopter crash in the highlands. A nearby soldier was killed by a rocket blast. He saw soldiers with severe head wounds. The clinical social worker concluded that the veteran displayed many of the classic PTSD criteria. An April 1994 VA mental disorders examination report reflects nightmares of Vietnam. The veteran reported that on his first day in Vietnam in 1965 the enemy attacked his base in Thanh Hoa province. The Axis I diagnoses, in order, were PTSD, chronic and moderate; and, major depression, recurrent. The RO sent a request for verification of stressors to the U.S. Army and Joint Services Environmental Support Group (now U.S. Armed Services Center for Research of Unit Records hereinafter referred to as CRUR) in December 1996. In August 1997CRUR supplied relevant reports that reflect that the veteran's division fought three decisive engagements from October through December 1965. From January through April 1966, the division fought in four major battles. The division occupied several bases, including Bien Hoa, and combat operations extended to Tay Ninh. Enemy activity included mortar attacks and small unit actions. The enemy reportedly could direct mortar fire into our installations with relative ease. During the period, 1,395 Purple Hearts were awarded as well as 284 ARCOMs. The 1st Med BN suffered one combat death and one combat injury. More radio relay units were recommended to improve long-range communication in the dense jungles, which tended to absorb the radio signals. It was noted that the enemy used both women and children in battle and to toss grenades at Americans. For the period from January 1968 to July 1968, CRUR documented that the veteran's unit supported nine named combat operations and that the Tet offensive produced daily battle damage to the unit's helicopters. In February 1998, the veteran testified that he served two tours in Vietnam as a radio mechanic where he repaired radio equipment at the front lines. He testified that he performed perimeter guard duty and survived mortar attacks and firefights. He saw soldiers killed by sniper fire. A friend, Norman, was killed by a rocket. Other friends, Davis and McCoy were killed. Norman and McCoy were 1st Med Bn members who were killed in 1965, but Davis was with the 228th Aviation Bn and died in 1968. The veteran testified that during his second tour he performed door gunner duties aboard a helicopter and that mortar attacks were a daily occurrence during his second tour. He thought that his base camp might have been called LZ English and that his headquarters might have been near Cu Chi, but he did not get there often, as he was in the field. He also recalled that he served on a body bag detail and that he watched as a helicopter crashed. He then recalled that McCoy was killed in 1968 and that during 1968 he performed perimeter guard duty also. He testified that he had not seen a private doctor for PTSD. He testified that he was never a medical corpsman, but his job was to protect medical personnel. In September 1998, the National Personnel Records Center (NPRC) reported that there was no record of the veteran having served as a door gunner. In January 2000, CRUR supplied additional unit reports. These note that enemy activity increased during November 1965 over October 1965 with over 220 incidents reported. On November 20th, a convoy was attacked and 40 of the enemy were killed. The report notes that the enemy continued to harass base camps during hours of darkness. In December 1965, the 1st Division reported over 300 enemy-initiated incidents. Small arms fire continued to be directed toward base camps, particularly during hours of darkness. Automatic weapons, mortars and claymore mines were used. A document notes that the 1st Med Bn was stationed with the 1st Infantry Division headquarters in Di An (near Bien Hoa). Artillery at Bien Hoa fired thousands of rounds in defense of the area. During November 1 through November 15, 1965, the division discovered 15 enemy base camps near Di An and destroyed them. In September 2001, the veteran submitted additional information concerning the deaths of comrades killed in action, including details of deaths of those with identical surnames. The veteran also submitted a certificate titled "1st Cavalry Division Airmobile Vietnam Combat Certificate." The certificate notes that the veteran served in Vietnam with the M&H Co, 228th Aviation from January 11, 1968 to August 8, 1968, and that the First Division received the Presidential Unit Citation for defeating the enemy in the 75-day Pleiku Campaign, which commenced in September 1965. The certificate notes that this and subsequent victories "are lasting tribute to the heroism and devotion of each fighting man who has served with the 1st Cavalry Division (Airmobile)." In November 2001, the veteran reported that he had difficulty remembering names and dates but he did recall that he arrived at Bien Hoa airbase in June or July 1965 and that he was soon thereafter assigned perimeter guard duty and that they frequently came under mortar and sniper attack. He recalled a sweep of the perimeter after which he placed corpses in body bags. He reported that during his second tour he was trained as a door gunner but that he mostly performed perimeter guard duty. He was at LZ English, which was usually under attack. He suffered a finger and foot wound and a friend suffered a back or side wound. After witnessing a helicopter crash, he was not able to perform duties and was evacuated to Walter Reed Hospital. In August 2002, the veteran reported stressor details previously reported and added that he sometimes had to engage in fire fights in order to get back to base camp. In November 2002, the RO received medical records from Walter Reed Army Hospital that reflect that the veteran was admitted in August 1968 with a diagnosis of asthma. No record of treatment for a nervous condition was found. In December 2002, the veteran supplied additional details of a helicopter pilot killed in action and of a rocket attack on Camp Evans. In September 2003, CRUR confirmed that Camp Evans was rocketed on May 19, 1968, but could not confirm the death of the helicopter pilot. In May 2004 and June 2004 letters, a VA physician reported that the veteran had severe PTSD associated stressors related to events in Vietnam. In November 2004, the veteran testified before the undersigned Veterans Law Judge that he continues to receive VA PTSD treatment. He testified that he returned to Vietnam for a second tour because he could not readjust after returning from the first tour. Analysis In order to establish service connection for a disability, the evidence must show that it resulted from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2004). Service connection for PTSD is subject to additional requirements, however. Service connection for PTSD also requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § Sec. 4.125(a); 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, his lay testimony-alone-may establish the occurrence of the claimed in-service stressor 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 his service. 38 C.F.R. § 3.304(f) (2004); see also Cohen v. Brown, 10 Vet. App. 128 (1997). The record in this case shows that a PTSD diagnosis has been given. The PTSD diagnosis assumes that the veteran participated in combat and experienced specific combat- related stressors. Thus, medical experts have considered the combat-related stressors alleged by the veteran, and have diagnosed PTSD based on those stressors. 38 C.F.R. §§ 3.304(f), 4.125; West (Carlton) v. Brown, 7 Vet. App. 70, 79 (1994). The issue to be resolved is whether there is credible supporting evidence of the combat-related stressors alleged by the veteran or whether the evidence demonstrates that he participated in combat, in which case credible supporting evidence is unnecessary. 38 C.F.R. § 3.304(f). The question of whether an alleged stressor is supported by credible evidence is one of fact to be resolved by VA adjudicators alone. Wilson v. Derwinski, 2 Vet. App. 614 (1992); Wood v. Derwinski, 1 Vet. App. 190 (1991). The veteran reported surviving mortar attacks, rocket attacks, and sniper fire, among other events, but cannot recall precise dates or locations of these events. His personnel records do not conclusively establish those facts or conclusively establish his participation in combat. These records establish that the veteran was awarded an ARCOM for participation in military operations against a hostile enemy force although this does not conclusively denote participation in combat, as all personnel assigned in Southeast Asia during the Vietnam War era were arguably participating in military operations against a hostile force. His "Combat Certificate" notes that he was honored as a member of the fighting men who served with the 1st Cavalry Division, Airmobile; however, this too does not conclusively establish participation in combat. His VCM, VSM, and MOS codes do not conclusively prove, actual participation in combat. Personnel records also reflect that the veteran participated in Vietnam Counter Offensive Phase III, which does not conclusively establish participation in combat. Although his DD-214 also reflects receipt of a "Medical Badge," no further information on this award was ever located. VA's guidance on what constitutes combat for purposes of establishing a diagnosis of PTSD is found in VAOPGCPREC 12- 99. The Board points out that 38 U.S.C.A. § 7104(a), (c) states "The Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department." Thus, GC opinions, like that cited above, are mandatory guidance that VA must follow. According to VAOPGCPREC 12-99, the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b) requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality. Nothing in the language or history of that statute or any VA regulation suggests a more specific definition. The determination as to what evidence may be satisfactory proof that a veteran "engaged in combat with the enemy" necessarily depends on the facts of each case. Determining whether evidence establishes that a veteran engaged in combat requires an evaluation of all pertinent evidence and an assessment of the credibility, probative value, and relative weight of the evidence. VAOPGCPREC 12-99 indicates that there is no statutory or regulatory limitation on the types of evidence that may be used in any case to support a finding that a veteran engaged in combat with the enemy. Hence, the Board must consider all submissions such as the "Combat Certificate". The GC opinion concludes that any evidence which is probative of that fact may be used by a veteran to support an assertion of combat with the enemy, and VA must consider any such evidence in connection with all other pertinent evidence of record. The opinion notes that whether a particular statement in service department records indicating that the veteran participated in a particular "'operation" or "campaign" is sufficient to establish that the veteran engaged in combat with the enemy depends upon the language and context of the records in each case. As a general matter, evidence of participation in an "operation" or ""campaign" often would not, in itself, establish that a veteran engaged in combat, because those terms ordinarily may encompass both combat and non-combat activities. However, there may be circumstances in which the context of a particular service-department record indicates that reference to a particular operation or campaign reflects engagement in combat. Further, evidence of participation in a particular "operation" or "'campaign" must be considered by VA in relation to other evidence of record, even if it does not, in itself, conclusively establish engagement in combat with the enemy. VAOPGCPREC 12-99 also states that the benefit-of-the-doubt rule in 38 U.S.C.A. § 5107(b) applies to determinations of whether a veteran engaged in combat with the enemy for purposes of 38 U.S.C. § 1154(b) in the same manner as it applies to any other determination material to resolution of a claim for VA benefits. VA must evaluate the credibility and probative value of all pertinent evidence of record and determine whether there is an approximate balance of positive and negative evidence or whether the evidence preponderates either for or against a finding that the veteran engaged in combat. If there is an approximate balance of positive and negative evidence, the issue must be resolved in the veteran's favor. See 38 C.F.R. § 3.102 (2004). The unit records submitted by the veteran marginally support his claim of participation in combat. The veteran reported having survived mortar attacks. Unit records do reflect occasional mortar attacks at their locations. In Cohen, the Court stressed that "mortar fire" "might be construed as combat related". The veteran reported having engaged in firefights. Unit records reflect that enemy activity was a constant threat throughout his assigned area, which tends to corroborate his claim. The veteran reported that he was stationed at or near Bien Hoa and Tay Ninh. Unit records bear out that his unit was located in Di An, proximal to Bien Hoa. He reported driving to outlying base camps, and recalled Camp Evans. Unit record corroborate that his unit did support numerous outlying bases and that Camp Evans was attacked during his tour of duty. This might be construed as participation in combat. Unit records note that the veteran's unit, the 1st Med Bn, suffered one killed in action and one wounded in action. This alone is persuasive evidence that others similarly situated were involved in combat action. The veteran reported performing body bag detail. Unit reports noted frequently that American and enemy soldiers were killed in combat in the area. Although the unit reports tend to support his allegation of seeing bodies (which was a claimed stressor), this in itself is not evidence of combat, but rather evidence of a claimed non-combat stressor, which, in effect, would also help him win his claim. In Pentecost v. Principi, 16 Vet. App. 124, 129 (2002), the Court reversed the Board's denial of a claim for service connection for PTSD on the basis of an unconfirmed in-service stressor. In Pentecost, the veteran submitted evidence that his unit was subjected to rocket attacks around DaNang in 1967 and 1968. The Court pointed out that corroboration of every detail of a stressor under such circumstances, such as the veteran's own personal involvement, is not necessary. Also see Suozzi v. Brown, 10 Vet. App. 307 (1997). The facts in this case are similar because the veteran has submitted independent evidence of the occurrence of the claimed mortar and rocket attacks that occurred while he was officially assigned to an area that came under such attacks. Thus, even without a decoration such as a Purple Heart or a Combat Infantryman's Badge, the evidence of record is sufficient to place the issue of participation in combat in relative equipoise. Applying the benefit of the doubt doctrine, the Board will resolve the issue in favor of the veteran. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1991). Considering all the evidence, including an assessment of the credibility, probative value, and relative weight of the evidence and of the veteran's credible testimony, the Board finds that it is at least as likely as not that the veteran did engage in combat with the enemy. The diagnosis of PTSD is based in these combat experiences. Accordingly, service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ ROBERT P. REGAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs