Citation Nr: 0714187 Decision Date: 05/14/07 Archive Date: 05/25/07 DOCKET NO. 05-06 099 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and friend ATTORNEY FOR THE BOARD Nancy S. Kettelle, Counsel INTRODUCTION The veteran service on active duty from November 1964 to October 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In that rating decision, in pertinent part, the RO denied service connection for PTSD. The veteran's disagreement with that decision led to this appeal. The veteran and a friend testified before a Decision Review Officer (DRO) at a hearing held at the RO in April 2004. FINDING OF FACT There is credible evidence corroborating at least one of the veteran's claimed in-service stressors, supporting a current diagnosis of PTSD. CONCLUSION OF LAW The criteria for establishing service connection for PTSD have been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304(f) (2006). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify and assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (in pertinent part now codified as amended at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2006); see 38 C.F.R. § 3.159 (2006)) eliminated the requirement of a well-grounded claim and enhanced the notice and assistance to be afforded to claimants in substantiating their claims. The Board has considered whether further development and notice is required under the VCAA. The Board concludes that no useful purpose would be served by such action, and there is no harm to the veteran as this decision is wholly favorable to him. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis The veteran contends that his PTSD is related to stressful experiences in service starting with his arrival at Tan Son Nhut airbase in Vietnam in December 1966. He has stated that he saw bombing, the ground was shaking, and everything was shaking. He said he was only a few miles from bombing and helicopters were working the area, attacking enemy positions on hillsides and there was shooting of rockets and guns. He reports he was shaking, nervous, and scared. He said that he was then transferred by truck to Phu Lam, the site of the communications station to which he was assigned. He has also reported being exposed to periodic attacks at his base at Phu Lam and recalled an incident he believed to be in February 1967 when the base was attacked at night with mortars. He testified that at that time infantry helicopters from Cu Chi, which the veteran said was right next to Phu Lam, "were all over the place" and were firing; the veteran said he could see tracers in both directions, coming down and going up. The veteran also reports he was exposed to sniper fire in Saigon just before he left Vietnam. The veteran's service personnel records show that he served in Vietnam from December 1966 through October 1967 and was a communications center specialist assigned to the U.S. Army Strategic Command Facility (USASTRATCOM - FAC) Phu Lam from December 20, 1966, to June 24, 1967, when it was redesignated the Phu Lam Signal Battalion (USASTRATCOM) where it remained until the end of the veteran's tour in Vietnam in October 1967. While the veteran's service records do not show that the veteran landed at Tan Son Nhut, they do show that he arrived in Vietnam on December 16, 1966. The U.S. Armed Service Center for Unit Records Research (CURR) (now U.S. Army and Joint Services Records Research Center (JSRRC)) was unable to verify attacks on Phu Lam during the time the veteran was in Vietnam, and it said it could not confirm any claimed attack in Saigon. In its report, CURR stated that the Operational Report - Lessons Learned (OR-LL) submitted by the 25th Infantry Division stated that on March 15, 1967, at 2000 hours Cu Chi received 50 rounds of 82mm fire and 25 rounds of 75mm recoilless rifle fire. CURR said it found in an Operational Report submitted by the 2nd Signal Group that this unit reported the same incident with the same basic information. In addition, CURR stated that the Military Assistance Command Vietnam Chronology for 1966 reports that Tan Son Nhut received an attack on December 16, 1966. Service medical records do not include any complaints of, or treatment for, a psychiatric disorder. Post-service treatment records do show treatment for PTSD starting in 2003 and diagnosis of the disorder by Public Health Service and VA health care professionals, including a psychiatrist, based on in-service events as outlined above. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). When a veteran seeks service connection for a disability, due consideration shall be given to the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154; 38 C.F.R. § 3.303(a). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 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). The diagnosis of a mental disorder must conform to the DSM-IV and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When considering the evidence as outlined above, the Board finds that the veteran did not engage in combat with the enemy, but he participated in combat operations and was exposed to stressful events. Although it has not been possible to verify the veteran's exposure to sniper fire in Saigon, nor are there records directly documenting an attack on Phu Lam, the service department has been able to document an attack on Cu Chi in March 1967, and the veteran in his testimony spoke of seeing fire from helicopters from Cu Chi, which he has asserted was nearby. Further, the service department confirmed there was an attack on Tan Son Nhut on December 16, 1966, the day of the veteran's arrival in Vietnam, which is consistent with the veteran's statement about the firing of rockets and guns on the day of his arrival at Tan San Nhut in December 1966. The Board recognizes that the evidence obtained from CURR does not provide specific corroboration that the veteran himself was subjected to enemy attacks, nor does it demonstrate that the veteran himself actually engaged in combat with the enemy. In this regard, the Board notes that the United States Court of Appeals for Veterans Claims (Court) has held that by requiring corroboration of every detail, including the veteran's personal participation, VA defined "corroboration" far too narrowly. Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). In Suozzi, the Court found that a radio log, which showed the veteran's company had come under attack, was new and material evidence to warrant reopening a PTSD claim, despite the fact that the radio log did not identify the veteran's participation. The Court further stressed that the evidence favorably corroborated the veteran's alleged in-service stressor. Id. The Court reaffirmed its holding in Suozzi, when, in 2002, it stated that the veteran's unit records constituted independent descriptions of rocket attacks that were experienced by the veteran's unit when he was stationed in Vietnam, which, when viewed in the light most favorable to the veteran, objectively corroborated his claim of having experienced rocket attacks. Penetcost v. Principi, 16 Vet. App. 124 (2002). The Court pointed out that, although the unit records did not specifically identify the veteran as being present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred suggested that he was in fact exposed to the attacks. The Court underscored that it had made clear in Suozzi that corroboration of every detail of a claimed stressor is not required and that the veteran's presence with his unit at the time the attacks occurred corroborated his statement that he experienced such attacks personally, and thus his unit records were clearly credible evidence that the rocket attacks that the veteran alleged occurred did, in fact, occur. Id. at 128-29. In this case, the evidence of record shows that VA examiners have diagnosed the veteran as having PTSD due to in-service stressors, including hostile fire. Further, in light of the Court's decisions in Pentecost and Suozzi, and with resolution of all reasonable doubt in favor of the veteran, the Board finds that the record contains credible supporting evidence that at least one of the veteran's reported in- service stressors actually occurred. In light of the foregoing, and in the absence of any contradictory medical evidence, the Board finds that the veteran's PTSD is result of experiences during active service and concludes that that the criteria for establishing service connection for PTSD have been met. ORDER Service connection for PTSD is granted. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs