Citation Nr: 0821831 Decision Date: 07/02/08 Archive Date: 07/14/08 DOCKET NO. 94-15 848 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to special monthly compensation, based on a need for the regular aid and attendance of another person, or being housebound. 3. Entitlement to specially adapted housing. 4. Entitlement to a special home adaptation grant. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. M. Casula, Counsel INTRODUCTION The veteran had active service from January 1969 to November 1970. This matter comes before the Board of Veterans' Appeals (Board) from a January 1994 rating decision of the above Regional Office (RO) of the Department of Veterans Affairs (VA) which denied the veteran's claim for service connection for PTSD. This matter further comes before the Board from an October 2006 rating decision in which the RO denied entitlement to special monthly compensation, based on a need for the regular aid and attendance of another person, or being housebound; denied entitlement to specially adapted housing; and denied entitlement to a special home adaptation grant. With regard to the claim for service connection for PTSD, the Board will herein summarize the history of this claim. By decision dated in February 1998, the Board denied the veteran's claim of service connection for PTSD. The veteran subsequently filed a timely appeal to the United States Court of Appeals for Veterans Claims (Court). In an order dated in May 1999, the Court vacated the February 1998 decision and remanded the issue to the Board. In May 2000, the Board remanded the claim to the RO for further development. In February 2003, the Board again denied the claim of service connection for PTSD. The veteran once again appealed to the Court. In July 2004, the Court issued a Memorandum Decision in which the case was remanded to the Board. In August 2004, the Court entered a judgment on the case. In June 2005, the Board remanded the claim to the Appeals Management Center (AMC) for further evidentiary development. The record reflects that the veteran's representative, Sean Kendall, has limited his representation of the veteran to the issue of entitlement to service connection for PTSD. With regard to the other three issues on appeal, the veteran's prior representative, the American Legion, has indicated in a letter dated in September 2007 that it cannot represent the veteran in this matter as he is already represented. With regard to personal hearings addressing the issue of service connection for PTSD, the record reflects that in October 1995 and in February 2007, the veteran testified at hearings at the RO before a local hearing officer, and in April 1997 he testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. With regard to personal hearing for the other three issues on appeal, the record reflects that in February 2008 the veteran was scheduled for a Travel Board hearing at the RO, however he did not show for the hearing and indicated by statement of the same day that he wanted to reschedule. This matter will be further addressed in the remand below. The three issues of entitlement to special monthly compensation, based on a need for the regular aid and attendance of another person, or being housebound; entitlement to specially adapted housing; and entitlement to a special home adaptation grant, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the AMC, in Washington, DC. FINDINGS OF FACT 1. The medical evidence is in relative equipoise as to whether the veteran currently has PTSD. 2. The medical evidence of record is in relative equipoise as to whether the veteran's PTSD was caused, at least in part, by a verified stressor that occurred during the veteran's military service. CONCLUSION OF LAW Giving the benefit of the doubt to the veteran, the Board concludes that PTSD was incurred, in part, as a result of an in-service stressor. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Given the fully favorable decision contained herein, the Board finds that discussion of the VCAA notice provided to the veteran is unnecessary, since any deficiency in the timing or content of such notice would constitute harmless error. To whatever extent the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date, the Board finds that, given the favorable decision herein, the RO will address any applicable downstream issues when effectuating the award. II. Laws and Regulations Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., under the criteria of the Diagnostic and Statistical Manual of Mental Disorders, 4th ed.(DSM-IV); a link, established by medical evidence, between the veteran's 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. 38 C.F.R. § 3.304(f). The U.S. Court of Appeals for Veterans Claims has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in- service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that 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. III. Factual Background and Analysis A review of the claims file shows that the veteran was diagnosed with PTSD at various times during the course of the appeal process (which the veteran initiated in February 1993 when he filed his claim for service connection for PTSD). The record reflects that he has been diagnosed with PTSD on VA examination in April 1993 when the diagnosis was moderate PTSD; in a March 1994 letter from a private MSW who diagnosed PTSD based on the veteran's reported experiences in Vietnam; and an April 2000 VA treatment record which diagnosed PTSD based on in-service stressors. The Board also notes, however, that the most recent medical evidence - the June 2007 VA examination - provided a diagnosis of depression, rather than PTSD. However, the examiner appears to have related the veteran's depression, at least in part, to events in service, including assaults and mortar and rocket attacks. Consideraing this association of current symptoms with traumatic events in service, the Board concludes that there is relative equipoise between the evidence against a diagnosis of PTSD and that in favor of such diagnosis. Consequently, the Board must find that he has PTSD. However, a nexus to service is still required. Given the aforementioned state of the competent medical evidence of record, therefore, and also in accordance with applicable law, the Board observes that application of the doctrine of reasonable doubt establishes that these two elements of the claim for PTSD, a current diagnosis and nexus to a claimed in-service stressor, are met for this appeal. The Board notes, however, that the element remaining at issue for this claim concerns whether there is adequate and credible supporting evidence that the veteran's claimed in- service stressor actually occurred. See 38 C.F.R. § 3.304(f). The record reflects that the veteran served as a boatswain's mate assigned to the Naval Support Activity in DaNang from July to November 1969. He has alleged several stressful experiences that he claimed occurred during his military service, including working security patrol, living in constant fear of sniper attacks and rocket fire, discrimination and racial hostility, seeing close friends injured, and direct hits to his air base. He has not contended, nor does the evidence of record indicate that he was involved in combat with the enemy. Thus, since he did not engage in combat, there must be credible supporting evidence that the veteran's non-combat stressors occurred. In that regard, the Board notes that in May 2002 the veteran submitted a copy of a newspaper article from The White Elephant News dated September 26, 1969, which included a report of a rocket attack and explosion on September 6, 1969, at the Naval Support Activity Supply Depot in DaNang. Additionally, received from the veteran's representative in April 2007, were unit records for the veteran's unit in Vietnam, from the National Archives, as well as records from the Office of Air Force History for the base (DaNang) at which the veteran was stationed in Vietnam. These records show that the veteran's unit and base were subject to rocket activities and attacks during his tour of duty in Vietnam. Thus, in considering these various records, and in the spirit of Pentecost and Suozzi, the Board concludes that there is evidence that tends to corroborate the existence of an in- service stressor. See Pentecost v. Principi, 16 Vet. App. 124 (2002) (holding that a veteran need not substantiate his actual presence during the stressor event, but that the fact that the veteran was assigned to and stationed with a unit that was present while such an event occurred may strongly suggest that he was, in fact, exposed to the stressor event); see also Suozzi v. Brown, 10 Vet. App. 307 (1997). Based upon this evidence, the Board finds that the evidence is in relative equipoise as to whether the veteran has PTSD and as to whether in-service stressors contributed to his PTSD. 38 U.S.C.A. § 5107(b); Gilbert, supra. Resolving doubt as to all material elements, the Board determines that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND In his September 2007 substantive appeal (VA Form 9), the veteran indicated that he wanted a hearing at the RO before a Veterans Law Judge. Although he was notified of the hearing by letter dated in November 2007, the veteran did not show for the hearing which was scheduled for February 1, 2008. Received from the veteran on that same date was a statement in which he indicated he wanted to reschedule so that he could be represented by the American Legion. The record reflects that the veteran's attorney, Sean Kendall, has limited his representation of the veteran to the issue of entitlement to service connection for PTSD. With regard to the other three issues on appeal, the veteran's prior representative, the American Legion, has indicated in a letter dated in September 2007 that it cannot represent the veteran in this matter as he is already represented. Because of the full grant of the issue on appeal (with regard to the claim for service connection for PTSD), it appears that the veteran would be able to obtain representation for the other three issues on appeal: entitlement to special monthly compensation, based on a need for the regular aid and attendance of another person, or being housebound; entitlement to specially adapted housing; and entitlement to a special home adaptation grant. Accordingly, the case is REMANDED for the following action: Schedule the veteran for a Travel Board hearing at the RO before a Veterans Law Judge. Advise the veteran that it is his responsibility to obtain representation for the hearing, and that at this point he does not have a representative of record. Appropriate notification should be given to the veteran (and any representative that the veteran may obtain), and such notification should be documented and associated with the claims folder. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ HOLLY E. MOEHLMANN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs