Citation NR: 9717517 Decision Date: 05/19/97 Archive Date: 05/29/97 DOCKET NO. 94-28 318 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Charles G. Sener, Associate Counsel INTRODUCTION The appellant had active service from July 1973 to July 1976 and from December 1977 to October 1985. Review of the appellant’s claims file reveals that he initially raised a claim seeking service connection for PTSD in July 1991, as evidenced by a VA form 21-4138, “Statement in Support of Claim,” which was received by the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO) on July 31, 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the RO’s January 1994 rating decision which denied a claim of entitlement to service connection for PTSD. A hearing was held on February 28, 1997, in Montgomery, Alabama, before Jack W. Blasingame, who is a member of the Board section rendering the determination in this claim and was designated by the Chairman to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1996). A transcript of the hearing was received, and the case was subsequently referred for appellate consideration. The laws and regulations governing the evaluation of mental disorders, including PTSD, were recently changed, effective November 7, 1996. See 38 C.F.R. §§ 4.125, 4.126, 4.130, Diagnostic Code 9411 (1996), as amended by 61 Fed. Reg., No. 196, 52695-52702 (October 8, 1996). Furthermore, 38 C.F.R. § 4.125(a) now provides that: If the diagnosis of a mental disorder does not conform to DSM-IV or is not supported by the findings on the examination report, the rating agency shall return the report to the examiner to substantiate the diagnosis. In Karnas v. Derwinski, 1 Vet.App. 308, 312-13 (1991), the United States Court of Veterans Appeals (Court) held that, when there has been a change in an applicable statute or regulation after a claim has been filed but before a final decision has been rendered, VA must apply the version of the statute or regulation which is most favorable to the claimant, unless otherwise provided by Congress. In VAOPGCPREC 11-97, the General Counsel stated that the Board may consider regulations not previously considered by the agency of original jurisdiction if the claimant will not be prejudiced by the Board’s action in applying those regulations in the first instance. Although the appellant has not been evaluated for PTSD under DSM-IV, which appears to relax the stressor criteria to support a diagnosis of PTSD, the Board does not believe that a REMAND is required under these circumstances. In reviewing the claims file, the Board finds that the appellant has been afforded an opportunity to appear at a hearing, and his contentions and evidence submissions have been focused on the merits of his claim. Therefore, and in light of the following grant of service connection for PTSD, the Board does not believe that the appellant has been prejudiced. Bernard v. Brown, 4 Vet.App. 384 (1993). CONTENTIONS OF APPELLANT ON APPEAL Although the RO acknowledged that the appellant was exposed to continuous stress while working around chemical weapons, it was noted that no deaths were associated with the his experiences on Johnston Island; therefore, the RO determined that the appellant’s stressors were insufficient to support his diagnosis of PTSD. The appellant was first diagnosed as having delayed PTSD in July 1991 when he was hospitalized in a VA facility. The diagnosis was based on a history of stressors related to the appellant’s experiences on Johnston Island in service, where he served as a chemical weapons ammunition storage helper. The appellant avers that it was very stressful working around Vx rockets and chemical weapons which leaked at times, causing alarms to sound and exposing him and others to various types of nerve gas. Thus, the appellant disagrees with the RO’s determination and asserts that service connection is warranted for PTSD. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1996), has reviewed and considered all of the evidence and material of record in the appellant’s claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports a grant of service connection for PTSD FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appellant's appeal has been obtained by the agency of original jurisdiction. 2. The appellant was stationed on Johnston Island from January 1980 to December 1980, where he performed the duties of an ammunition storage helper while assigned to the 267th Chemical Company. 3. Service records disclose no decorations or awards indicating combat duty. 4. A diagnosis of PTSD based on the appellant’s alleged stressors associated with having worked with chemical weapons in service was first shown in July 1991, when he was hospitalized in a VA medical facility with complaints of severe nightmares and flashbacks of being trapped in a box while wearing a gas suit. 5. In October 1993 the Department of the Army’s Environmental Support Group indicated that the mission of the 267th Chemical Company on the Johnston Island Atoll was overseeing the “storage, safeguard, maintenance, and security for ready to issue chemical agents;” rabbits were used as “live monitors” and “Vx” rockets were assigned to the island, but it was noted that “harmful exposure to any chemicals would be very unusual and highly unlikely” since every precaution had been taken to safeguard personnel at the facility, including emergency medical measures. 6. A September 1994 VA medical opinion indicates that the appellant had been subjected to “varying levels of constant threat of mortal danger” while working around chemical weapons in service, and “his complete pattern of behavior more closely fits the diagnosis of Posttraumatic Stress Disorder.” 7. The appellant’s statements and testimony concerning inservice stressors associated with his duties while assigned as an ammunition storage helper on Johnston Island in service are consistent with the circumstances, conditions, and hardships of such service. CONCLUSION OF LAW PTSD was incurred as a result of military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 1991); 38 U.S.C.A. §§ 1112, 1113 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.303, 3.304(f), 3.307, 3.309 (1996). REASONS AND BASES FOR FINDINGS AND CONCLUSION Because a well-grounded claim is neither defined by the statute nor the legislative history, it must be given a common sense construction. A well-grounded claim is a plausible claim, one which is meritorious on its own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990). Review of the appellant’s claims file reveals that he worked with chemical weapons as an ammunition storage helper in service and that he was subsequently diagnosed as having PTSD based on stressors associated with that experience. In accordance with 38 U.S.C.A. § 5107 (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990), the appellant has presented a well-grounded claim. The facts relevant to this appeal have been properly developed, and the obligation of VA to assist the appellant in the development of the claim has been satisfied. Id. Service connection may be established for disability resulting from personal injury or disease incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1996). Additionally, where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 31, 1946, and a psychosis becomes manifest to a degree of 10 percent or more within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1137 (West 1991); 38 U.S.C.A. §§ 1112, 1113 (West 1991 & Supp. 1996); 38 C.F.R. §§ 3.307, 3.309 (1996). 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (1996). Service connection for PTSD requires medical evidence establishing a clear diagnosis of the condition, credible supporting evidence that the claimed inservice stressor actually occurred, and a link, established by medical evidence, between current symptomatology and the claimed inservice stressor. If the claimed stressor is related to combat, service department evidence that the veteran engaged in combat or that the veteran was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. Additionally, if the claimed stressor is related to the claimant having been a prisoner-of-war, prisoner-of-war experience which satisfies the requirements of § 3.1(y) of this part will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed inservice stressor. 38 C.F.R. § 3.304(f) (1996). The Court has held that in each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence, and that service connection may be established through competent lay evidence, not medical records alone. Horowitz v. Brown, 5 Vet.App. 217 (1993); but see Espiritu v. Derwinski, 2 Vet.App. 492, 494 (1992) (lay witness is not capable of offering evidence requiring medical knowledge). Review of the appellant’s service medical records, including an August 1985 service separation report of medical examination, reveals no complaint, symptomatology, or finding referable to PTSD. However, the Board notes that he began receiving treatment in 1983 for alcohol abuse, including hospitalization for continuous alcohol abuse in July 1983, and he continued to receive counseling in 1984 and 1985. The appellant’s DD Form 214, “Certificate of Release or Discharge from Active Duty,” shows that he was separated for failure to rehabilitate his alcohol abuse. He was not awarded any decorations or awards evincing combat duty. However, his service personnel records indicate that he was stationed on Johnston Island from January 1980 to December 1980, where he performed the duties of an ammunition storage helper while assigned to the 267th Chemical Company. It was reported in a May 1989 VA psychology outpatient treatment record that the appellant had PTSD symptoms, including anxiety attacks, insomnia, depression, withdrawal, alcohol abuse, loss of job, and confrontation with the “authorities.” A staff psychologist opined that the appellant’s symptoms were related to hazardous duty handling of toxic substance war material in service. A September 1989 VA medical certificate lists the appellant’s symptoms as anxiety, inability to relax, startled awakening with fearful feelings, irritability, explosive reactions, and alcohol abuse in the recent past. The appellant’s stressors included divorce proceedings from his wife, restriction from seeing his newborn baby, imprisonment for “DUI,” loss of job, loss of household possessions, and loss of his home. It was recommended that the appellant receive outpatient psychiatric treatment. In March 1991 he was diagnosed as having an affective disorder. A VA discharge summary indicates that he was hospitalized in July and August 1991 with complaints of severe nightmares and flashbacks of being trapped in a box, wearing a gas suit. It was noted that he had worked around nerve gas in 1980 while in the service. Physical evaluation findings showed that the appellant was anxious, tense, uptight, and tremulous, and he was treated with various prescription medications, including Haldol, Benadryl, Cogentin, and Deyerle. A final assessment of delayed PTSD was listed. The appellant was again hospitalized in a VA facility during September and October 1991 with complaints of confusion, nervousness, and forgetfulness. He received psychiatric treatment for an acute psychotic episode. A VA discharge summary lists mixed type bipolar disorder with a history of alcohol abuse as a final diagnosis. In February 1992 he was hospitalized with complaints of “having mood swings,” and received treatment for affective disorder with PTSD features. A February 1993 VA discharge summary indicates that the appellant was hospitalized due to severe nightmares and flashbacks of a poison gas incident on Johnston Island; he was very anxious, tense, and uptight, and reported hearing voices, seeing things, and being paranoid. A final diagnosis of delayed PTSD with schizoaffective and paranoid features was shown. In a March 1992 statement, the appellant described the stressors he had been exposed to while stationed at Johnston Island in 1980. He stated that he had worked around munitions containing various types of nerve gas. He attributed the entire experience of having been around these weapons as a stressor by itself, and also noted that he had been personally exposed to nerve gas when some of the bombs and “Vx” rockets had leaked vapors. He recalled one incident where he had witnessed two soldiers “twitching and jerking” on the ground after having been exposed to nerve gas, at which time he had feared for his own life. He described another event when the warning buzzer sounded off in his bunker signaling gas contamination; before he could evacuate he noticed that his rabbit, which was used as a “live monitor,” was dead. After that episode he had to go through decontamination procedures, including a blood check for toxins. The appellant reiterated the aforementioned events and described others while at a November 1994 hearing before a hearing officer, evidenced by a record of transcript, and again before the undersigned at the February 1997 travel Board hearing. He also indicated that his drinking had begun while stationed on Johnston Island because there was nothing else to do stationed in a remote location with a stressful job. He remembered that a person could buy a beer for only 25 cents, so “for $2 dollars you could fall down.” Thus, the motto was “[d]rink by night and die by day.” He stated that there were approximately 164 people in his unit, counting clerks, etc.; he recalled that number because a C 141 cargo plane had body bags ready for everyone in his unit in the event of a tragic accident. At an April 1993 VA PTSD examination for compensation and pension (C&P) purposes, the appellant described various stressors that he had been exposed to while assigned to a nerve gas surveillance team on Johnston Island in 1980. He recalled having seen two soldiers “jerking” on the ground after having been exposed to gas; he stated that he had felt a lot of stress while working around rockets and nerve gas, and compared it to a persistent life threatening situation. It was reported that the appellant experienced nightmares and flashbacks of being “boxed in” and an inability to breathe through his gas mask. A final diagnosis of delayed PTSD was shown. In October 1993 the Department of the Army’s Environmental Support Group (ESG) indicated that the mission of the 267th Chemical Company on the Johnston Island Atoll was overseeing the “storage, safeguard, maintenance, and security for ready to issue chemical agents;” rabbits were used as “live monitors” and “Vx” rockets were assigned to the island, but it was noted that “harmful exposure to any chemicals would be very unusual and highly unlikely” since every precaution had been taken to safeguard personnel at the facility, including emergency medical measures. A February 1994 VA discharge summary shows that the appellant was admitted to a closed psychiatry unit for treatment of PTSD and major affective disorder. He was stabilized on medications and hospital milieu, and subsequently discharged to outpatient care at the Community Service Program. A September 1994 VA medical opinion indicates that the appellant had been subjected to “varying levels of constant threat of mortal danger” while working around chemical weapons in service, and “his complete pattern of behavior more closely fits the diagnosis of Posttraumatic Stress Disorder.” In September 1996 the appellant was hospitalized for treatment of an unrelated medical condition. But he also received psychiatric consultations and PTSD screening. In Cohen v. Brown, No. 94-661 (U.S. Vet.App. March 7, 1997), the Court discussed the three requisite elements for eligibility for service connection for PTSD: (1) a current clear medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed inservice stressor); (2) credible supporting evidence that the claimed inservice stressor actually occurred; and (3) medical evidence of a causal nexus between current symptomatology and the specific claimed inservice stressor. See 38 C.F.R. § 3.304(f) (1996); see also VA ADJUDICATION PROCEDURE MANUAL, M21-1 (MANUAL M21-1, Part VI, para. 7.46 (Oct. 11, 1995). With regard to the first element, the Court stated that a “clear diagnosis” should be an “unequivocal” one. Moreover, an opinion by a mental health professional based on a post- service examination of the veteran cannot be used to establish the occurrence of the stressor(s). Finally, the medical reports establishing a “clear diagnosis” of PTSD must indicate a link between current symptoms and the stressful event(s) in service. Cohen v. Brown, No. 94-661 (U.S. Vet.App. March 7, 1997). The Court noted that despite the reference to DSM-IV in the revised VA regulation, the provisions for PTSD in MANUAL M21-1 still refer to DSM-III-R and to the extent that the MANUAL M21-1 provisions are more favorable to the claimant than the new regulatory provisions, they are for application. Id. Also, due to the new DSM-IV PTSD diagnostic criteria, the Court’s holdings in Zarycki v. Brown, 6 Vet.App. 91 (1993) and Swann v. Brown, 5 Vet.App. 229 (1993), would not apply to the consideration of the DSM-IV criteria. Id. In Dizoglio v. Brown, the Court declared that the requirement in 38 C.F.R. § 3.304(f) for “credible supporting evidence” means that “the appellant’s testimony, by itself, cannot, as a matter of law, establish the occurrence of a noncombat stressor.” 9 Vet.App. 163, 166 (1996). The Court has held that the requirements in 38 C.F.R. § 3.304(f) for a “link, established by medical evidence, between current symptomatology and the claimed inservice stressor” and for “credible supporting evidence that the claimed in[-]service stressor actually occurred” indicate that something more than medical nexus evidence is required to fulfill the requirement for “credible supporting evidence.” Moreau v. Brown, No. 94-883 (U.S. Vet.App. Sept. 12, 1996). Otherwise, the requirement for “credible supporting evidence” could be rendered nugatory. Id. Therefore, credible supporting evidence of the actual occurrence of an inservice stressor cannot consist solely of after-the-fact medical nexus evidence. Id. Although the appellant’s service medical records disclose no decorations or awards indicating combat duty, the October 1993 ESG report, described above, discloses that the appellant’s unit was charged with the “storage, safeguard, maintenance, and security for ready to issue chemical agents.” Furthermore, it was noted that rabbits were used as live monitors and that Vx rockets were assigned to Johnston Island. According to ESG, while the appellant was stationed on Johnston Island there had been no deaths, and “harmful exposure to any chemicals would [have been] very unusual and highly unlikely.” Notwithstanding, the Board believes that the appellant’s statements and testimony concerning inservice stressors associated with his duties while assigned as an ammunition storage helper on Johnston Island from January 1980 to December 1980 are consistent with the circumstances, conditions, and hardships of such service. The appellant was first diagnosed as having PTSD in July 1991, and his current PTSD symptomatology is based upon stressors associated with having worked around chemical weapons, including nerve gas, during service. Moreover, a VA physician opined in September 1994 that the appellant’s “varying levels of constant threat of mortal danger” while working in close proximity to chemical weapons was a sufficient stressor to establish the diagnosis of PTSD. After careful and longitudinal consideration of all procurable and assembled data, the Board believes that the appellant’s statements and testimony concerning inservice stressors are at least consistent with and not contradictory to the information provided by ESG. Therefore, the Board finds that the evidence of record demonstrates the existence of stressful events of the quality required to support the appellant’s current diagnosis of PTSD. Accordingly, service connection is granted for PTSD. ORDER Service connection is granted for PTSD. JACK W. BLASINGAME Member, Board of Veterans' Appeals A proceeding instituted before the Board of Veterans' Appeals (Board) may be assigned to an individual Member of the Board or to a panel of not less than three Members of the Board for a determination. 38 U.S.C.A. § 7102 (West 1991 and Supp. 1996). This proceeding was assigned to the Board Member whose name and signature appear above. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1996), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals. - 2 -