Citation Nr: 0800184 Decision Date: 01/03/08 Archive Date: 01/22/08 DOCKET NO. 06-28 382 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The appellant and his wife ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from November 1968 to June 1970. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In September 2007, to support his claim, the veteran testified at a hearing at the RO before the undersigned Veterans Law Judge (VLJ) of the Board - also generally referred to as a "travel Board" hearing. His wife provided supporting testimony. In an earlier submitted statement, dated in July 2007, the veteran raised the additional issues of his entitlement to service connection for residuals of Agent Orange exposure, to include its effects on his wife (two miscarriages) and his daughter (eye problems). The RO has not adjudicated these additional claims, much less denied them and the veteran appealed them to the Board. So they are referred to the RO for appropriate development and consideration since the Board does not have jurisdiction to consider them in this decision. See 38 C.F.R. § 20.200 (2007). FINDINGS OF FACT 1. A VA examiner in February 2005 confirmed the veteran has PTSD from carrying and transporting wounded and dead soldiers, especially W.L., a fellow soldier he knew on a professional basis during his tour in Vietnam. 2. The veteran submitted a buddy statement in April 2006 corroborating this traumatic incident in service, and his wife testified at the September 2007 travel Board hearing that she, too, remembered him discussing this incident. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran claims he experienced a stressful, traumatic event during his tour in Vietnam to account for his PTSD. Service connection for PTSD requires (i) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., DSM-IV), (ii) medical evidence establishing a link between current symptoms and an in-service stressor, and (iii) credible supporting evidence that the claimed in- service stressor occurred. 38 C.F.R. § 3.304(f) (2007). With respect to the first requirement, a VA compensation examiner diagnosed the veteran with PTSD at a February 2005 mental status evaluation and assigned a Global Assessment of Functioning (GAF) score of 58. VA outpatient treatment records also show diagnoses of PTSD. Note also that these several diagnoses of PTSD are presumably in accordance with DSM-IV, both in terms of the adequacy and sufficiency of the stressors claimed. See Cohen v. Brown, 10 Vet. App. 128 (1997). So the requirement of a DSM-IV diagnosis of PTSD is no longer in dispute. See, too, Brammer v. Derwinski, 3 Vet. App. 233, 225 (1992) (Service connection presupposes a current diagnosis of the claimed disability). As cause for his PTSD, the veteran submitted various statements - including in response to PTSD questionnaires, listing the following stressors as the reason he has this condition: (1) carrying, transporting, and guarding wounded and dead bodies, to include (W.L.), a fellow soldier he knew; and (2) shrapnel in his leg from a roadside bomb. The determinative issues, therefore, are whether there is objective confirmation of any of these claimed stressors and whether there is medical evidence linking the PTSD diagnosis to at least one of these stressors. The evidence necessary to establish the occurrence of an in-service stressor depends on whether the veteran "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If he can meet this standard through military citation or other appropriate evidence, and the claimed stressors are related to combat, VA must accept his lay testimony regarding the reported stressors as conclusive evidence of their actual occurrence, provided the testimony is credible and "consistent with the circumstances, conditions, or hardships of such service." Moreover, no further development or corroborative evidence is necessary. 38 C.F.R. § 3.304(f)(1). See also 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). The veteran's DD Form 214 does not show evidence of combat in service, such as a commendation or medal denoting this. See VAOPGCPREC 12-99 (October 18, 1999). A service personnel record dated in June 1970 notes that he assisted in the Tet 69 Counteroffensive; however, it does not indicate he engaged in combat in that capacity. His DD Form 214 indicates his military occupational specialty (MOS) was supply specialist and light vehicle driver, which also is not prima fascia evidence of combat service. Because there is insufficient evidence to conclude he engaged in combat against enemy forces in Vietnam, his testimony alone is insufficient proof of the events claimed. 38 C.F.R. § 3.304(f). Instead, the record must contain service records or other corroborative evidence that substantiates or verifies his testimony or statements as to the occurrence of the claimed stressors. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). There also are no service medical records containing evidence of combat or a psychiatric disability - including a stress- related mental illness (keeping in mind VA did not adopt the PTSD nomenclature until 1980 or thereabouts, years after the veteran's military service had ended in June 1970). But still, resolving all reasonable doubt in his favor, the Board finds that his buddy statement, the testimony he and his wife gave during the travel Board hearing, and the medical opinion from his February 2005 VA mental status examination provide sufficient evidence to grant his claim. In Pentecost v. Principi, 16 Vet. App. 124 (2002), the Court held that a veteran need not corroborate his actual physical proximity to (or firsthand experience with), and personal participation in, rocket attacks while stationed in Vietnam. See also Suozzi v. Brown, 10 Vet. App. 307 (1997) (holding that "corroboration of every detail [of a claimed stressor] including the appellant's personal participation" is not required; rather an appellant only needs to offer independent evidence of a stressful event that is sufficient to imply his or her personal exposure.) At the conclusion of the February 2005 VA mental status examination, the examiner confirmed the veteran has PTSD and assigned a GAF score of 58. But of equal or even greater significance, this examiner also indicated there is likely a relationship between the veteran's PTSD symptomatology and the traumatic events he experienced in Vietnam. In determining the probative value of this opinion, the Board sees this examiner accepted the veteran's stressor of carrying dead and wounded soldiers (including W.L.) as the cause of his PTSD symptoms of insomnia, recurring nightmares, intrusive memories, and classic avoidance behaviors. This is important because the veteran's most important stressor was carrying and transporting dead and wounded soldiers, but especially W.L., someone with whom he had spoken to on the radio in a professional capacity. Credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). In other words, whether an alleged incident in service occurred is a factual, not medical, determination. So the Board is not required to blindly accept the February 2005 VA examiner's opinion to the effect that, merely because the veteran indicated that he transported dead and wounded soldiers, to include W.L., this necessarily exposed him to the type of traumatic events he claims. But again, that said, corroboration does not require "that there be corroboration of every detail including [his] personal participation in the identifying process." Suozzi, 10 Vet. App. at 311. And in both Pentecost and Suozzi, it was held that specific evidence that a veteran was actually with his unit at the time of an attack is not required to verify that attack as a PTSD stressor. In Suozzi, 10 Vet. App. at 310- 11, the Court determined that evidence that the veteran's company received heavy casualties during an attack consisting of copies of radio logs of that incident was sufficient to reopen his claim for service connection for PTSD, even without specific evidence of the veteran's presence with the company during that particular incident. Also, Pentecost, 16 Vet. App. at 128-29 held that the Board had interpreted the corroboration requirement too narrowly by requiring the veteran to demonstrate his actual proximity to and participation in rocket and mortar attacks. The Court indicated in this respect that although the veteran's unit records did not specifically show he was present during the alleged rocket attacks, "the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks." Id. With this in mind, there is legitimate reason to believe the veteran did indeed see dead and wounded soldiers, including W.L., and that, as the VA examiner concluded, those events were particularly traumatic for the veteran. That is to say, there has been at least some credible, independent corroboration of his claimed stressors. It deserves mentioning that, when trying to remember the approximate date that W.L. was killed in Vietnam, the veteran was only off by two days (of that soldier's since confirmed death), despite that fatality having occurred many years ago. This is a reflection of the veteran's credibility, which, in turn, means the February 2005 VA examiner was not relying on an unsubstantiated history for concluding the veteran has PTSD most likely the result of traumatic events that occurred during his tour in Vietnam. See, e.g., Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (indicating the Board may not disregard a favorable medical opinion solely on the rationale it was based on a history given by the veteran). Rather, as the Court further explained in Coburn v. Nicholson, 19 Vet. App. 427 (2006), reliance on a veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. In further support of his claim, the veteran submitted a buddy statement from J.R.H, another fellow soldier who served in his supply unit, confirming that J.R.H. and the veteran carried wounded and dead bodies, including W.L.'s, from the battlefield back to their base at Xuan Loc and guarded the body until it could be transported elsewhere. Moreover, the veteran's wife testified during the September 2007 travel Board hearing that she, too, remembered hearing her husband talk about W.L. as far back as the year of their marriage in 1972, only two years after his discharge from the military. Hence, especially when resolving all reasonable doubt in his favor, the record provides sufficient evidence to support the veteran's contention that he experienced a stressful or traumatic event in service - but especially while transporting and guarding the body of W.L., someone he knew, to warrant granting service connection for PTSD. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The appeal is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs