Citation Nr: 1030461 Decision Date: 08/13/10 Archive Date: 08/24/10 DOCKET NO. 07-23 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Robert W. Legg, Esq. ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from February 1965 to January 1969 and from April 1969 to April 1971, including in the Republic of Vietnam from December 1969 to July 1970. This claim comes before the Board of Veterans' Appeals (Board) on appeal of an August 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina that denied entitlement to service connection for PTSD. The Board affirmed the RO's determination by decision issued in August 2008. The Veteran then appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2010, based on a Joint Motion for Remand (joint motion), the Court remanded this matter to the Board for compliance with the instructions in the joint motion. While this case was before the Court, the Veteran filed claims for service connection for hypertension, connection for coronary artery disease, and entitlement to a total disability evaluation based on individual unemployability (TDIU). The RO has not completed its adjudication of these claims. They are thus referred to the RO for appropriate action. This case has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT There is medical evidence of record linking the Veteran's currently diagnosed PTSD to a verified in-service stressor. CONCLUSION OF LAW PTSD was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Given the favorable outcome in this case, there is no need for additional notice or assistance in substantiating the claim. II. Analysis The Veteran contends that he developed PTSD due to multiple in- service stressors experienced in Vietnam (Da Nang, Phu Bai, Hue and Quang Tri) while serving with the Mobile Construction Battalion 10 (MCB-10). These stressors include: (1) seeing numerous dead bodies, including of soldiers and civilians, and mutilated remains; (2) having friends die in his arms; (3) witnessing soldiers' heads being blown off; (4) witnessing soldiers being hanged; (5) witnessing booby-trapped children exploding and women and children being killed; (6) fearing for his life; (7) having a friend, J.C., die in July 1969 (later commented he was there when friend died); (8) being attacked by Viet Cong during the Tet Offensive in July 1968 or July 1969; (9) being attacked at Da Nang airfield immediately after arriving in Vietnam and having no weapon; (10) being subject to enemy rocket attacks at Camp Wilkinson, which was part of Camp Eagle; (11) coming under attack while attached to an Army Airborne unit and driving in convoys; and (12) being attacked in February 1970, while assigned to the Quang Tri bridge project. When the Veteran filed a claim for service connection for PTSD, the applicable regulation, 38 C.F.R. § 3.304(f), provided that, to establish entitlement to such a benefit, a veteran must submit medical evidence diagnosing PTSD in accordance with Sec. 4.125(a) of this chapter; 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. 38 C.F.R. § 3.304(f) (2009) VA amended this regulation during the course of this appeal, effective July 12, 2010. This amendment eliminates the requirement of corroborating evidence of a claimed stressor if the stressor is related to a fear of hostile military or terrorist activity. 75 Fed. Reg. 39,843, 39,852 (Jul. 13, 2010) (to be codified as amended at 38 C.F.R. § 3.304(f)). It applies, in part, to claims received on or after July 12, 2010 and claims pending before VA on July 12, 2010, if they involve a Court Order vacating a Board decision and remanding it to the Board for readjudication. In this case, the Court remanded, rather than vacated the Board's decision so it is unclear whether the amendment applies. However, as the Veteran's representative hints in a brief dated July 2010, regardless, the amendment does not substantively affect the Veteran's claim because the claims file includes corroborating evidence of a claimed stressor. The documents in the claims file, including VA treatment records dated since 2004, a report of PTSD evaluation conducted during two visits in October 2004 and November 2004, a January 2005 addendum report, a report of PTSD evaluation conducted in May 2008 and a June 2008 letter from a private physician, satisfy the first element of a PTSD claim under the former and revised criteria of 38 C.F.R. § 3.304(f) because they include diagnoses of PTSD. These documents also satisfy the second element of a PTSD claim under the former and revised criteria 38 C.F.R. § 3.304(f), because they link the Veteran's PTSD to traumatic Vietnam War experiences and thus to in-service stressors, including seeing dead and mutilated bodies, soldiers hanged, soldiers' heads blown off and children exploding from booby traps and fearing for his life. Having submitted a diagnosis of PTSD that is linked to claimed in-service traumatic stressors, the Board must now determine whether the record contains credible supporting evidence that the claimed in-service stressors actually occurred. In adjudicating a claim for PTSD, the evidence necessary to establish the occurrence of a stressor during service varies depending on whether the veteran was "engaged in combat with the enemy." Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If it is shown through military citation or other appropriate evidence that a veteran engaged in combat with the enemy and the claimed stressors are related to combat, the veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence of their actual occurrence, provided the testimony is found to be satisfactory, e.g., credible and "consistent with the circumstances, conditions, or hardships of such service." In such a case, no further developmental or corroborative evidence is necessary. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2009). In determining whether a veteran participated in combat, his oral and written testimony will be weighed together with the other evidence of record. Cohen v. Brown, 10 Vet. App. 128, 146 (1997). In a precedent opinion, VA's General Counsel held that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99, 65 Fed. Reg. 6256-6258 (2000). The General Counsel also indicated that the determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that the veteran did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that the veteran did not engage in combat. Id. Receiving enemy fire can, however, constitute participation in combat. Sizemore v. Principi, 18 Vet. App. 264, 270 (2004). Where a determination is made that the veteran did not "engage in combat with the enemy," or that the claimed stressor is not related to combat, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. In such a case, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). A veteran need not corroborate every detail of an alleged stressor, including his participation in the activity, for verification purposes. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997); Pentecost v. Principi, 16 Vet. App. 124, 128 (2002) (holding that a veteran who had a military occupational specialty unrelated to combat, but was stationed with a unit that sustained attacks strongly suggests that the veteran was, in fact, exposed to these attacks). In this case, the Veteran claims, in part, that he served in a unit that received enemy fire and, in that capacity, "engaged in combat with the enemy." His DD 214 and other service personnel records establish that he served in the Republic of Vietnam from December 1969 to July 1970 as a member of the MCB-10 Seabees Unit. He had a military occupational specialty of storekeeper and received a National Defense Service Medal and Vietnam Service Medal for such service. These particular records, which do not reflect that the Veteran was commended for combat or received a Combat Infantryman Badge or Purple Heart, which are awarded for combat-related circumstances, do not establish the Veteran's engagement in combat. Other evidence of record reflects that the Veteran's unit received enemy fire, which might have caused the Veteran to be fearful for his life, as alleged. This evidence, alone, is insufficient to establish the Veteran's engagement in combat with the enemy, but sufficient to verify that some of the Veteran's alleged stressors occurred as alleged. This evidence includes: (1) the 1969 command history of MCB-10; (2) a copy of a page from the MCB-10 cruise book discussing Camp Wilkinson, which indicates that this camp was within the sprawl of Camp Eagle, home of the 101st Airborne; (3) its December 27, 1969 to September 17, 1970 deployment completion report, which shows that Camp Eagle came under rocket attack four times while the Veteran was serving there, including on March 14, 1970, May 3, 1970, June 26, 1970 and July 7, 1970, and also shows that following the May 3, 1970 attack, Bridge 13 was repaired and that another rocket attack on May 19, 1970 impacted the Quang Tri Bridge Project; (4) an email from L. H., a fellow veteran who served at Camp Eagle from October 1968 to July 1970, confirming intermittent rocket attacks, including one on June 25, 1970, during which he was almost killed; and (5) a September 1970 Letter of Commendation to the Commander of the Veteran's unit, which notes that the unit's maintenance and construction problems were multiplied, in part, by enemy interdiction and verifies participation in the Quang Tri Bridge project and repair of Bridge 13 following its destruction by fire. Although the Veteran had a military occupational specialty unrelated to combat while stationed at Camp Wilkinson, which was part of Camp Eagle, he was stationed with a unit that sustained five attacks, including while working on Quang Tri Bridge Project, strongly suggesting that he was subject to these attacks. Certainly there is no evidence of record to indicate otherwise. The Board notes that, in an effort to verify all of the Veteran's other alleged stressors, the RO secured information from various sources, including the Veteran's service personnel file and the United States Armed Services Center for Unit Records Research (CURR). This information either failed to verify that the in- service stressors occurred, as alleged, or contradicted the Veteran's reports of the alleged stressors, thereby calling into question his credibility. The Board need not further address this matter, however, because even if the Veteran's credibility is questionable, his claims file includes documentation verifying alleged stressors. Similarly, because there is supporting evidence of claimed stressors, there is no need to reach a conclusion as to whether the Veteran served in combat. Inasmuch as there is medical evidence of record linking the Veteran's PTSD symptoms to a verified in-service stressor, the Board concludes that the Veteran's PTSD was incurred in active service. The evidence in this case supports the Veteran's claim for service connection for PTSD. ORDER Service connection for PTSD is granted. _____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs