Citation Nr: 1003409 Decision Date: 01/22/10 Archive Date: 02/01/10 DOCKET NO. 04-31 816A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran had active service from March 1962 to April 1989, to include service in the Republic of Vietnam from September 1964 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded by the Board in November 2007 for further development and the claim for service connection for PTSD is now ready for final appellate disposition. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has PTSD that is associated with his military service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As a result of the Board's decision to grant service connection for PTSD, any failure on the part of VA to notify and/or develop the Veteran's claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009) (VCAA) cannot be considered prejudicial to the Veteran. The Board will therefore proceed to a review of the claim on the merits. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also 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. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for PTSD in particular requires medical evidence diagnosing the condition in accordance with VA regulations; 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 a 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 a veteran's service, his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (pertaining to combat veterans). If VA determines either that a veteran did not engage in combat with the enemy or that he or she did engage in combat, but that the alleged stressor was not combat related, his or her lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates a veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also Gaines v. West, 11 Vet. App. 353 (1998) (specific finding required as to whether a veteran engaged in combat with the enemy). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Here, the Veteran claimed that the following stressors occurred during his period of active duty service in Vietnam: ? he was assigned perimeter guard duty, where he came under constant fire from incoming artillery rounds; THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Anthony M. Flamini, Associate Counsel INTRODUCTION The Veteran had active service from March 1962 to April 1989, to include service in the Republic of Vietnam from September 1964 to September 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. This case was remanded by the Board in November 2007 for further development and the claim for service connection for PTSD is now ready for final appellate disposition. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran has PTSD that is associated with his military service. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDING AND CONCLUSION As a result of the Board's decision to grant service connection for PTSD, any failure on the part of VA to notify and/or develop the Veteran's claim pursuant to the Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009) (VCAA) cannot be considered prejudicial to the Veteran. The Board will therefore proceed to a review of the claim on the merits. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2009). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2009). Further, service connection may also 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. 38 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2009). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection for PTSD in particular requires medical evidence diagnosing the condition in accordance with VA regulations; 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 a 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 a veteran's service, his or her lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f); see also 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d) (pertaining to combat veterans). If VA determines either that a veteran did not engage in combat with the enemy or that he or she did engage in combat, but that the alleged stressor was not combat related, his or her lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain credible supporting evidence that corroborates a veteran's testimony or statements. Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also Gaines v. West, 11 Vet. App. 353 (1998) (specific finding required as to whether a veteran engaged in combat with the enemy). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. 38 U.S.C.A. § 5107(b). Here, the Veteran claimed that the following stressors occurred during his period of active duty service in Vietnam: ? he was assigned perimeter guard duty, where he came under constant fire from incoming artillery rounds; ? he was constantly exposed to dead bodies of U.S. servicemen being offloaded from helicopters; and ? he was shot in the left leg and the bullet was later removed at U.S. Army Garrison Giessen, Germany. A determination as to whether a veteran engaged in combat with the enemy must be based on consideration of all evidence of record in each case. In many cases, no single item of evidence will be determinative of the issue, and it will be necessary to evaluate the evidence for and against the assertion that a veteran engaged in combat. Specifically, VA must assess the credibility, probative value, and relative weight of each relevant item of evidence and to apply the benefit-of-the-doubt standard if the evidence is in equipoise. Service records indicate that the Veteran served as a transportation parts specialist during the relevant time period. Although he was the recipient of the Vietnam Cross of Gallantry, Air Assault Badge, Army Service Ribbon, Overseas Service Ribbon, Overseas Service Bars, and Vietnam Advisory Defensive Ribbon, these awards are not indicative of involvement in combat. Despite his account of being shot in Vietnam, he has conceded that he was not awarded a Purple Heart. As there is no objective evidence of participation in combat, his assertions of service stressors are not sufficient to establish the occurrence of such events, and instead his reported stressors must be verified. Post-service treatment records indicate diagnoses of PTSD. Specifically, an August 2003 letter from his VA therapist indicated that the Veteran exhibited symptomatology consistent with the DSM-IV diagnostic criteria for PTSD. The therapist continued that "his being attacked and his stacking of the body bags on the runways in Vietnam during his tour are what he considers the root of his condition." The Board notes that the described incidents must meet the criteria to qualify as a stressor. There are two requirements for a stressor to be sufficient for PTSD: (1) a person must have been "exposed to a traumatic event" in which "the person experienced, witnessed, or was confronted with an event or events that involved actual or a threatened death or serious injury, or a threat to the physical integrity of self or others" and (2) "the person's response [must have] involved intense fear, helplessness, or horror." Cohen, 10 Vet. App. at 141 (quoting DIAGNOSTIC AND STATISTICAL MANUAL OF MENTALDISORDERS 32 (4th ed. 1994)). With respect to the Veteran's alleged stressor that he unloaded the bodies of deceased U.S. servicemen off of helicopters, such a stressor has not been verified by the evidence of record and is incapable of verification through unit records. With respect to the Veteran allegedly being shot in the left leg during his service in Vietnam, such an occurrence is also unsupported by the evidence of record. Service treatment records for the period from 1964 to 1965 reveal treatment for a right leg abrasion in March 1965 after the Veteran accidentally ran into a footlocker; however, there is no evidence of a gunshot wound to the left leg. Significantly, his March 1989 report of medical examination upon retirement indicated that he had scars on the bridge of his nose and on his left forearm, but did not mention a left leg gunshot scar. Moreover, available U.S. Army casualty files did not list the Veteran as wounded in Vietnam. As such, this reported stressor is also unverified. As for the reported stressor of being under "constant fire" while on perimeter guard duty, although the Veteran asserts that this occurred while he was stationed with the 62nd Aviation Company, 11th Air Assault Division, in Vinh Long, Vietnam, (from September 30, 1964 to December 14, 1964, in fairness to the Veteran, the Board will also consider the incident as having occurred during his service with Company A of the 502nd Aviation Company, from December 14, 1964 to March 24, 1965. Although unit records of the 62nd Aviation Company dated in 1964 indicate that the nearby Bien Hoa Air Base received a Viet Cong mortar attack, there is no indication that the Vinh Long compound came under attack during the Veteran's time there. To the contrary, unit records reveal that a fire-team and flagship were deployed to conduct nightly reconnaissance of the immediate surrounding area to prevent Vet Cong attacks on Vinh Long. There is no documentation indicating that the Veteran was a member of these fire-teams. Furthermore, the 62nd Aviation Company unit records reveal that many missions were flown, ranging from routine administrative support to combat assaults. "While crews were not subjected to hostile fire on every mission, this fact was the exception rather than the rule." However, turning to the Veteran's service with the 502nd Aviation Company, records from the 13th Aviation Battalion reflect that in June or July 1964, the 114th Aviation Company was already a part of this battalion and that Company A of the 502nd Aviation Battalion was added to it during this time period. More importantly, records from the 114th Aviation Company for the period of January 1 1964 to December 31, 1964 reflect that that there was "a constant threat of bodily harm from a Viet Cong attack," and there is no information that permits the Board to conclude that only this part of the battalion was exposed or that the 502nd was not. Accordingly, the Board will give the Veteran the benefit of the doubt, and find that the stressor of being under "constant fire" while on perimeter guard duty has been verified as associated with his service with Company A of the 502nd Aviation Battalion in December 1964. Pentecost v. Principi, 16 Vet. App. 124 (2002). The Board also notes that the August 2003 VA PTSD examiner has already found that the Veteran's exposure to this stressor was sufficient to support a diagnosis of PTSD, and that under the criteria of DSM-IV, an individual may have PTSD based on exposure to a stressor or stressors that would not necessarily have the same effect on almost everyone. Therefore, since there is corroborating evidence that the Veteran experienced a significant stressor in service, and such stressor has been found to support a diagnosis of PTSD, the Board finds that service connection for PTSD is warranted. ORDER Service connection for PTSD is granted. REMAND As a result of the Board's decision to grant service connection for PTSD, the Board finds that the Veteran's claim for TDIU must be remanded for an examination to determine whether this and the Veteran's other service- connected disabilities preclude him from securing or following a substantially gainful occupation. Accordingly, the case is REMANDED for the following action: 1. Afford the Veteran a VA general medical examination. The claims folder and a copy of this remand are to be made available to the examiner for review in conjunction with the examination. All studies deemed necessary by the examiner are to be completed. The examiner is requested to express a medical opinion as to the degree of occupational impairment attributable to the Veteran's service-connected disabilities (coronary artery disease, right thalamic hemorrhage with left upper extremity impairment, right thalamic hemorrhage with weakness of the left leg, tinnitus, bilateral hearing loss, and hypertension), as opposed to any nonservice-connected disabilities and advancing age. In particular, describe what types of employment activities would be limited because of the Veteran's service- connected disabilities and whether any limitation on the Veteran's employment is likely to be permanent. The examiner must provide a comprehensive report including complete rationales for all conclusions reached. 2. Readjudicate the claim for TDIU. If the benefits sought on appeal remain denied, the Veteran and his representative should be provided a supplemental statement of the case, and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The appellant need take no action unless otherwise notified. The appellant has the right to submit additional evidence and argument on the matter or 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. 2009). ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs