Citation Nr: 0812437 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 05-20 820 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to service connection for post traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESSES AT HEARING ON APPEAL Appellant, appellant's spouse, two Vet Center therapists. ATTORNEY FOR THE BOARD Dan Brook, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from September 1969 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2004 rating decision of the Seattle, Washington Regional Office (RO) of the Department of Veterans Affairs (VA). A Travel Board hearing was held before the undersigned in February 2008; a transcript of the hearing is of record. FINDING OF FACT It is established that the veteran has PTSD due to corroborated stressors in service. CONCLUSION OF LAW The veteran's PTSD was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VCAA 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Given the favorable outcome detailed below, an assessment of VA's duties under the VCAA is not necessary. II. Factual Background Service medical records do not reveal any findings or diagnoses of psychiatric disorder. Service personnel records show that the veteran served aboard the USS Thomaston from July 1971 to September 1972. They also show that the Thomaston crew earned hostile fire pay in the months of June 1971 and September 1971. VA medical records from February 2004 to January 2006 show ongoing mental health treatment. Notes from May 2005 forward show that the veteran was diagnosed as having PTSD. Seattle Veteran's Center records from February 2004 to July 2006 also show ongoing treatment for PTSD. In an April 2004 statement the veteran alleged several stressor events in service. These included being called to battle stations for hours and hours after he first arrived aboard the USS Thomaston; serving radio operations duty while the ship was in Hong Kong Harbor and a fellow serviceman died after being "slipped a mickey"; and having one of his fellow shipmates lose all of his fingers after a hatch that had not been "positively latched" slammed shut. An August 2004 statement from a fellow shipmate of the veteran, D.D., indicated that while the veteran and D.D. served aboard ship, the Thomaston was assigned to an amphibious group that was involved with many aggressive operations to stop supply routes and waterways. The ship would land Marines and equipment in night time and first light and provided support for a Navy Seal team and underwater demolition team and also carried one and two man submarines and other support personnel such as Korean Special Forces advisors and South Vietnamese Special Forces units. They would often insert personnel by chopper and retrieve them by small boat and during these operations, they almost always received enemy fire such as mortars or RPG's or small arms sniper fire. On July 21, 1971 at 2 AM, while the ship was at anchor in Danang harbor, enemy swimmers were spotted in the water and general quarters was sounded. Fire and ships security watch opened fire and there were reports of two bodies floating in the water but not recovered. As the Thomaston was a small ship, all personnel were tasked with many duties and DD personally remembered that the veteran served on small boat operations on the coast and river inlets of Vietnam between June 1971 and July 1972. During and after most operations the ship would serve as a holding spot for casualties with most dead transported to the USS Iwo Jima and wounded moved to hospital ships or med evac. Nearly all of the Thomaston's personnel pulled duty involving the moving of the dead and wounded at one time or another. The veteran served as radio operator, damage control, gunner mate and general seaman at various times that the ship was under enemy fire from snipers or rpg/mortar fire and at all times every man feared for his life. Every man learned the fate of those who did not return from ops due to injury or death as this was a constant topic of conversation. DD had noticed that the veteran did not recall much of the moments of true danger they were involved in while serving on the Thomaston. A U.S.S. Thomaston ship history submitted in November 2004 indicates that between 1968 and 1973 the ship actively supported the war effort in Vietnam, conducting troop and cargo lifts and participating in amphibious operations. A September 2004 letter from a treating social worker, KS indicated that it was KS's professional opinion that the veteran could not remember a lot of the traumatic events he experienced in service and that enticing the veteran to remember such events might be detrimental to his well-being. On December 2004 VA psychiatric examination the diagnoses were PTSD, chronic and terribly severe and dysthymic disorder, secondary to PTSD. The examiner reviewed the claims file, noting that the veteran had received hostile fire pay for June 1971 and September 1971 and that he had submitted the April 2004 stressor statement. The examiner also noted that the veteran had a number of PTSD symptoms and that he was amnestic for aspects of his military service. On mental status examination, the veteran was found to be tense, emotionally distant and detached with constricted affect, emotional numbing and quite significant dysphoria related to his service experience. The veteran reported an additional stressor in service, that of helicopters bringing body bags back to the ship and being aware of a pallet of deceased individuals being dropped off at one point on the ship. The examiner found that the veteran met the full criteria for PTSD and that his military service had resulted in a shattered life. In a July 2006 statement the veteran identified additional stressor events in service including being called to general quarters hundreds of times and being caught in some 22 typhoons including one where a marine was almost killed by a sea swell. In a January 2008 letter, the veteran's treating psychiatrist, Dr. B, indicated that he had diagnosed the veteran as having PTSD, chronic type and recurrent depression. Dr. B had reviewed the veteran's old medical records and determined that it was beyond a reasonable doubt that the veteran had PTSD as a result of his military service. In a February 2008 letter, a shipmate of the veteran, RS, indicated that he remembered a crew member who lost his fingers aboard ship. The forward hatch in the deck department was supposed to be secured after special sea and anchor detail. Unfortunately, the hatch was not secured and the crewman got his fingers caught between the rim of the hatch and the hatch cover, resulting in the loss of his fingers. In another February 2008 letter, another shipmate of the veteran, RJ, indicated that he had been a member of the ship's first response firefighting team and thus, was stationed on the flight deck for all shipboard helicopter landings. During the time the ship was patrolling the coast of Vietnam he witnessed a helicopter landing on the flight deck where a number of deceased persons in body bags were quickly moved from the helicopter to the flight deck. The bodies were laid down side by side on the deck and then the helicopter quickly departed without shutting down its rotors. A short time later a different helicopter landed, loaded the bodies inside and departed, also without shutting down its rotors. In a third February 2008 letter, another shipmate of the veteran, KD, indicated that the Thomaston experienced a record number of typhoons while he and the veteran served aboard and during one of these, the fleet actually lost track of the ship and was about to send out a search party when the Thomaston radioed that it was coming back to port. III. Law and Regulations Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance 38 C.F.R. § 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, 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). Where VA determines that the veteran did not engage in combat, the veteran's lay testimony, by itself, as a matter of law, cannot be sufficient to establish the alleged stressor. Rather, the record must contain service records or other independent credible evidence to corroborate the veteran's testimony as to the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Those service records which are available must support and not contradict the veteran's lay testimony concerning the noncombat stressors. Doran v. Brown, 6 Vet. App. 283, 289 (1994). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When there is an approximate balance of positive and negative 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). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). IV. Analysis The medical evidence of record clearly establishes that the veteran has been diagnosed as having PTSD as two psychiatrists and at least one social worker have diagnosed the disorder and the record contains no current mental health assessments that do not include a PTSD diagnosis. Also, the PTSD has been uniformly linked to the stressors experienced during the veteran's military service. Accordingly, the only remaining question is whether it is appropriately established that one or more of the veteran's alleged stressor events in service occurred. In this regard, the Board notes that although it appears the veteran was subject to hostile fire, it has not actually been established that he was in combat. Consequently, his lay testimony is not sufficient to establish the occurrence of his alleged stressors. Rather, the record must also contain corroborative evidence. The Board finds that there is sufficient corroborative evidence of record to establish that at least some of the veteran's reported stressor events occurred. In particular the veteran's account of seeing the body bags filled with dead servicemen on deck was corroborated by the February 2008 letter from RJ. Also, DD noted that the Thomaston was used as a holding point for the transport of dead and wounded. Thus, given this evidentiary support combined with the lack of any evidence tending to show that the veteran did not witness the body bags on deck, the Board finds that this stressor is sufficiently corroborated. Additionally, the Board notes that the "body bag" stressor was specifically noted in the December 2004 VA psychiatric examination report in conjunction with the examiner diagnosing the veteran as having chronic and terribly severe PTSD. Further the Board finds that the veteran's reports of experiencing the typhoons and of having a shipmate who lost his fingers in a hatch door have also been corroborated by the separate accounts of former shipmates, KD and RS. The Board is concerned about the September 2004 letter from the veteran's treating social worker, KS. As noted, KS indicated that the veteran could not remember the traumatic events he experience in service and that enticing him to remember such events could be detrimental to the veteran's well being. It is unclear how the veteran could persistently reexperience the traumatic event if he could not remember the event. See Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition, of the American Psychiatric Association (noting that one of the criteria for a diagnosis of PTSD is the persistent reexperiencing of the traumatic event). Given that the record shows a diagnosis of PTSD, a link between this PTSD and in-service stressors, including seeing dead servicemen on deck, and credible supporting evidence that the stressors occurred, the preponderance of the evidence is in the veteran's favor and it is appropriate to grant service connection for PTSD. (CONTINUED ON NEXT PAGE) ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs