Citation Nr: 0809839 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 05-28 945 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from May 1968 to March 1970. His decorations include the Vietnam Service Medal. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Pittsburgh, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO). The veteran had requested a video conference hearing with a Member of the Board; however, he withdrew that request in January 2006. The Board finds no hearing request pending at this time. FINDINGS OF FACT 1. There is competent evidence of a diagnosis of post- traumatic stress disorder, which has been attributed to an in-service stressor. 2. There is credible, supporting evidence that the claimed in-service stressor occurred. CONCLUSION OF LAW With resolution of reasonable doubt in the veteran's favor, post-traumatic stress disorder was incurred in service. 38 U.S.C.A. § 1110, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a 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). In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The veteran asserts that he has PTSD as a result of his active military service. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. § 1110; 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. 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of a recognizable stressor during service to support a diagnosis of PTSD will vary depending upon whether the veteran engaged in "combat with the enemy." If the veteran engaged in combat with the enemy and his alleged stressor is combat- related, then his lay testimony or statement is accepted as conclusive evidence of the stressor's occurrence, and no further development or corroborative evidence is required - provided that such testimony is found to be "satisfactory," i.e., credible and "consistent with circumstances, conditions or hardships of service." See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f)(1); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, the alleged stressor is not combat related, then the claimant's lay statements, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. See Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, the record must contain evidence that corroborates the statements. See Cohen v. Brown, 10 Vet. App. 128, 147 (1997); Moreau v. Brown, 9 Vet. App. 389, 395 (1996); see also Zarycki, 6 Vet. App. at 98, Doran v. Brown, 6 Vet. App. 283, 289-290 (1994). When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The competent medical evidence of record clearly establishes that the veteran currently has PTSD. A diagnosis of PTSD has been given by a VA examiner and the veteran's private physician. Therefore, the remaining question is whether or not there is a link between the veteran's PTSD and his service. After a careful review of the evidence, resolving reasonable doubt in his favor, the Board finds that the veteran's current PTSD is linked to his service. The veteran was afforded a VA examination in April 2005 and a diagnosis of PTSD was rendered. The examiner stated that, among other things, the veteran reported frequent nightmares including reliving of mortar attacks, the need to drive his truck over potentially land-mined roads that were not always successfully cleared, and a reliving of events that lead to the wounding and/or death of many of his friends. In a statement about in-service stressors submitted to VA in December 2004, the veteran reported that while in the Republic of Vietnam (Vietnam), he served in the Army's 9th Division, 2nd Battalion, 47th Mechanized Infantry, D Company. The veteran's service personnel records verify that he was with this company in Vietnam from approximately March 1969 until March 1970. The veteran also reported being stationed at Fire Base Panther in "Bing Phouc Viet Nam, Mekong Delta, Long An Province." The veteran has submitted the names of some of his friends who were injured or killed while in Vietnam. One of the men identified by the veteran as killed in Vietnam was Staff Sergeant (SSG) M. G. The veteran reports that he was killed in November 1969 and a member of 2/47th Infantry, 9th Division. Records from the national archives show that a SSG M. G. was killed in November 1969 while serving in the Army's 9th Division, 6th Battalion, 31st Infantry, C Company. SSG G. reportedly was killed in Long An Province. While SSG G.'s unit was erroneously identified by the veteran, the Board is of the opinion that it is not unreasonable to believe that these men are one in the same. SSG G. was killed in Long An Province in November 1969, and the veteran was reportedly in Long An Province in November 1969. The veteran correctly reported the month and year of SSG G.'s death. Both veterans were also in the 9th Army Division. The Board recognizes that an Army division is a large group, and the men were in different regiments - SSG G. in an infantry regiment and the veteran in a mechanized infantry regiment. This does not preclude a finding that these men served together while in Vietnam. See Pentecost v. Principi, 16 Vet. App. 124 (2002). The veteran has been diagnosed with PTSD based in part on his reliving of events that lead to the wounding and/or death of some of his friends. One such friend was SSG G. This individual was killed in the province the veteran served in at the time the veteran served there in the same Army division. The Board finds that with reasonable doubt resolved in favor of the veteran the veteran's stressor is verified. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Given the above, service connection is granted. ORDER Entitlement to service connection for post-traumatic stress disorder is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs