Citation Nr: 0812227	
Decision Date: 04/11/08    Archive Date: 04/23/08

DOCKET NO.  04-07 192	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, 
Texas


THE ISSUE

Entitlement to service connection for post-traumatic stress 
disorder (PTSD).


REPRESENTATION

Appellant represented by: Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The veteran and his wife


ATTORNEY FOR THE BOARD

B. Morton, Associate Counsel 


INTRODUCTION

The veteran served on active duty from November 1979 to May 
1987 and from May 1988 to May 1992.

This matter is before the Board of Veterans' Appeals (Board) 
from a March 2003 decision by the Department of Veterans 
Affairs (VA) Regional Office (RO) in Houston, Texas, which, 
in relevant part, denied service connection for PTSD.  The RO 
issued a notice of the decision in March 2003, and the 
veteran timely filed a Notice of Disagreement (NOD) in April 
2003.  Subsequently, in January 2004 the RO provided a 
Statement of the Case (SOC), and thereafter, in February 
2004, the veteran timely filed a substantive appeal.  The RO 
supplied a Supplemental Statement of the Case (SSOC) in 
December 2005.

On appeal in October 2007 the Board remanded the case in 
order to afford the veteran a Travel Board hearing.  Said 
hearing was held in March 2008 where the veteran and his wife 
presented as witnesses before the acting undersigned veterans 
law judge.  A transcript of the hearing is of record.

Additionally, the veteran submitted a request to advance his 
case on the Board's docket pursuant to 38 C.F.R. § 20.900(c), 
which the Board granted in April 2008.


FINDINGS OF FACT

The veteran currently has a diagnosis of PTSD, and he 
credibly testified that he witnessed and handled dead bodies 
during his active service in Korea; a competent medical 
opinion has causally linked the veteran's current PTSD to his 
active service in Korea.





CONCLUSION OF LAW

Service connection for PTSD is warranted.  38 U.S.C.A. §§ 
1110, 1131 (West 2002 & Supp. 2007); 38 C.F.R. § 3.304 
(2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 
5103, 5103A, 5107 significantly changed the law prior to the 
pendency of this claim.  VA has issued final regulations to 
implement these statutory changes.  See 38 C.F.R. §§ 3.102, 
3.156(a), 3.159, 3.326(a).  The VCAA provisions include an 
enhanced duty to notify a claimant as to the information and 
evidence necessary to substantiate a claim for VA benefits, 
and they redefine the obligations of VA with respect to the 
duty to assist the veteran with his claim. 

In the instant case, the Board has rendered a decision in 
favor of the veteran, finding that service connection for 
PTSD is warranted, and therefore, a further discussion of the 
VCAA duties is unnecessary at this time.  

II. Law & Regulations

a. Service Connection for PTSD
A veteran can receive service connection for a disability 
resulting from injury or disease incurred in or aggravated by 
active military service.  38 U.S.C.A. §§ 1110, 1131; 38 
C.F.R. § 3.303.  Additionally, service connection may be 
granted for any disease diagnosed after discharge when all 
the evidence, including that pertinent to service, 
establishes that the disease was incurred in service.  See 38 
U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d); Cosman 
v. Principi, 3 Vet. App. 503, 505 (1992).  

In order for a veteran to establish service connection for 
PTSD he must offer proof of: (1) a current medical diagnosis 
of PTSD in accordance with 38 C.F.R. § 4.125(a); (2) credible 
supporting evidence that a claimed in-service stressor 
actually occurred; and (3) medical evidence of a link between 
current PTSD symptoms and the claimed in-service stressor.  
38 C.F.R. § 3.304(f); accord Sizemore v. Principi, 18 Vet. 
App. 264, 269 (2004); Cohen v. Brown, 10 Vet. App. 128, 138 
(1997).  38 C.F.R. § 4.125(a), which governs diagnosis of 
mental disorders, requires a diagnosis to conform to 
Diagnostic and Statistical Manual of Mental Disorders (DSM-
IV) or to be supported by the findings on the examination 
report, and if it does not, the report must be returned to 
the examiner to substantiate the diagnosis.  38 C.F.R. 
§ 4.125(a).  Where a current diagnosis of PTSD exists, the 
sufficiency of the claimed in-service stressor is presumed, 
however, credible evidence that the claimed in-service 
stressor actually occurred is also required.   Sizemore, 
supra.  

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 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); 
accord Stone v. Nicholson, 480 F.3d 1111, 1113 (Fed. Cir. 
2007) (noting that "in order for a veteran to be able to 
show service-connection for an injury using only lay 
evidence, the veteran must have engaged in combat with the 
enemy"); Sizemore, 18 Vet. App. at 270.  Participation in 
combat, a determination that is to be made on a case-by-case 
basis, requires that a veteran personally participated in 
events constituting an actual fight or encounter with a 
military foe or hostile unit or instrumentality.  See 
VAOPGCPREC 12-99; accord Sizemore, supra, at 272.  This may 
be established through "recognized military citations or 
other supportive evidence."  Zarycki v. Brown, 6 Vet. App. 
91, 98 (1993). 

If the veteran did not engage in combat with the enemy, or 
the claimed stressor is unrelated to combat, then the 
veteran's testimony alone does not suffice to establish the 
occurrence of the alleged stressor; instead, the veteran must 
corroborate his testimony by credible supporting evidence.  
See Stone, 480 F.3d at 1114 (finding no error in Board 
determination that a non-combat veteran's "own statements 
cannot serve as 'corroboration' of the facts contained in 
those statements"); Sizemore, 18 Vet. App. at 270; Cohen, 10 
Vet. App. at 142; Moreau v. Brown, 9 Vet. App. 389, 396 
(1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996).  
Because the question of whether the veteran was exposed to a 
stressor in service is a factual one, VA adjudicators are not 
bound to accept uncorroborated accounts of stressors or 
medical opinions based upon such accounts.  Wood v. 
Derwinski, 1 Vet. App. 190, 192 (1991), aff'd on 
reconsideration, 1 Vet. App. 406 (1991); Wilson v. Derwinski, 
2 Vet. App. 614, 618 (1992); accord Swann v. Brown, 5 Vet. 
App. 229, 233 (1993) (noting that the Board is not bound to 
accept a veteran's uncorroborated account of his active 
service experiences or medical opinions based on those 
accounts).  Corroboration of every detail of a claimed 
stressor, including personal participation, is not required, 
and independent evidence that the incident occurred is 
sufficient.  Pentecost v. Principi, 16 Vet. App. 124, 128 
(2002); see also Suozzi v. Brown, 10. Vet. App. 307, 310-311 
(1997).  In addition, any service department records must 
support, not contradict, the veteran's testimony regarding 
the non-combat stressor.  Doran, 6 Vet. App. at 289.

b. Standard of Proof
38 U.S.C.A. § 5107 (West 2002) sets forth the standard of 
proof applied in decisions on claims for veterans' benefits.  
A veteran will receive the benefit of the doubt when an 
approximate balance of positive and negative evidence exists.  
38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  Thus, when a veteran 
seeks benefits and the evidence is in relative equipoise, the 
veteran prevails.  Wells v. Principi, 18 Vet. App. 33, 36 
(2004); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990).  A 
claim will be denied only if a preponderance of the evidence 
is against the claim.  See Alemany v. Brown, 9 Vet. App. 518, 
519-20 (1996).  

III. Analysis 

a. Factual Background
The veteran's service records reflect that he served in Korea 
from July 1990 to January 1991 as a ground survey systems 
sergeant.  

A May 2002 VA medical record conveys the veteran's account 
that he had witnessed the deaths, by shooting or drowning, of 
individuals attempting to cross from North Korea to South 
Korea when he served on active duty in the Demilitarized Zone 
(DMZ).  He recounted that he had to pull dead bodies from the 
water, and on one occasion, a Korean soldier stuck one of the 
bodies with a stick, which caused the body to explode.  The 
physician diagnosed him with PTSD.

August 2002 VA psychiatric examination reports contain 
similar accounts of in-service stressors in Korea and 
diagnoses of PTSD.  

In January 2003 the veteran submitted to a VA psychiatric 
examination.  After obtaining a history from the veteran and 
conducting a mental status examination, the physician 
diagnosed him with PTSD in accordance with DSM-IV criteria.  
She also commented that the veteran "had Korean war related 
PTSD & irritability since 1998."

At his March 2008 Travel Board hearing the veteran testified 
that he served in the DMZ in Korea for 15 months.  See 
Hearing Transcript at 4, 24.  He reported hearing small arms 
fire and fearing for his life.  Hearing Transcript at 4, 5, 
23.  In addition, the veteran again recounted an incident 
where he and other soldiers had retrieved a dead body from a 
river, where another soldier had stuck a dead body, causing 
it to explode.  See Hearing Transcript at 26.  Such carnage 
"shook . . . up" the veteran.  Hearing Transcript at 26, 
27.    

During his hearing, the veteran also submitted a photograph 
of himself taken while he served in the DMZ.  See Hearing 
Transcript at 16.  This photograph depicts the veteran 
wearing army fatigues as well as an arm patch, with the 
insignia: "DMZ MP," reflecting that he served as a Military 
Policeman at the DMZ.  Sandbags, some sort of scoping device 
and a rifle appear close by.    

b. Discussion
The Board determines that the veteran has satisfied the 
service connection requirements for PTSD of establishing that 
he has a current PTSD diagnosis and that a competent medical 
professional has determined that a causal link exists between 
the current disorder and the veteran's active service in 
Korea.  That is, the January 2003 VA physician clearly made 
these positive determinations in that examination report, and 
no contrary opinion or evidence exists on the record to 
refute this favorable evidence.  

Accordingly, the only remaining issue with respect to this 
claim amounts to whether the veteran has offered sufficient 
proof of an in-service stressor.  The Board finds that he 
has.  Specifically, the veteran has consistently and credibly 
described, over a period of many years spanning May 2002 to 
March 2008, at least one stressful in-service event, namely, 
seeing and handling dead bodies when he served in the DMZ in 
Korea, as well as witnessing a dead body "explode" after 
being stuck by another individual.  See Chotta v. Peake, --- 
Vet. App. ----, 2008 WL 647383 at *4 (noting that "the Board 
should assess and weigh the credibility of [lay] statements 
contained in the record").  The veteran also recently 
submitted a photograph of himself, which corroborates that he 
served in the DMZ as an MP.  The Board determines that the 
evidence in totality, to include the veteran's credible 
testimony, weighs in favor of his service connection claim 
for PTSD, and therefore the claim is granted.  


ORDER

Service connection for PTSD is granted.




____________________________________________
ROBERT O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs