Citation Nr: 0810252	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  04-15 189	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, 
Missouri


THE ISSUES

1.  Entitlement to service connection for post-traumatic 
stress disorder (PTSD).

2.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
peripheral neuropathy of the extremities.

3.  Whether new and material evidence has been submitted to 
reopen a claim of entitlement to service connection for 
sinusitis/upper respiratory distress, to include bronchitis, 
asthma, and allergies.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

T. Adams, Associate Counsel
INTRODUCTION

The veteran served on active duty from June 1970 to January 
1972.

This case is before the Board of Veterans' Appeals (Board) on 
appeal from an August 2003 rating decision of the Department 
of Veterans Affairs (VA) Regional Office (RO) in St. Louis, 
Missouri, which denied the benefits sought on appeal.

The issues of whether new and material evidence has been 
submitted to reopen claims for service connection for 
peripheral neuropathy of the extremities and sinusitis/upper 
respiratory distress to include bronchitis, asthma, and 
allergies are remanded to the RO via the Appeals Management 
Center in Washington, D.C.


FINDING OF FACT

The medical evidence shows that the veteran has been 
diagnosed with PTSD which is medically attributed to a 
verified stressor he experienced during his service in 
Vietnam.


CONCLUSION OF LAW

PTSD was incurred in service.  38 U.S.C.A. §§ 1110, 5107 
(West Supp. 2007), 38 C.F.R. §§ 3.303, 3.304, 4.125 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has a duty to notify the veteran of any information and 
evidence needed to substantiate and complete a claim.  38 
U.S.C.A. §§ 5102, 5103 (West Supp. 2007); 38 C.F.R. 
§ 3.159(b) (2007).  VA also has a duty to assist the veteran 
in obtaining evidence necessary to substantiate a claim.  38 
U.S.C.A. §§ 5103A (West Supp. 2007); 38 C.F.R. § 3.159(c) 
(2007).
As discussed in detail below, sufficient evidence is of 
record to grant the benefit sought on appeal.  Therefore, no 
further notice or development is needed.

A claimant with active service may be granted service 
connection for a disease or disability either incurred in or 
aggravated by active military service.  38 U.S.C.A. §§ 1110, 
1131; 38 C.F.R. §§ 3.303, 3.304.

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.  38 C.F.R. § 3.303(d).

Service connection generally requires evidence of a current 
disability with a relationship or connection to an injury or 
disease or some other manifestation of the disability during 
service.  Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000); 
Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); 
citing Cuevas v. Principi, 3 Vet. App. 542 (1992).  Where the 
determinative issue involves medical causation or a medical 
diagnosis, there must be competent medical evidence to the 
effect that the claim is plausible.  Lay assertions of 
medical status do not constitute competent medical evidence.  
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).

Service connection for PTSD requires medical evidence 
diagnosing the condition in accordance with 38 C.F.R. 
§ 4.125(a) (i.e., under the criteria of DSM-IV), 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. § 4.125 
(2007).

VA considers diagnoses of mental disorders in accordance with 
the American Psychiatric Association: Diagnostic and 
Statistical Manual of Mental Disorders, Fourth Edition (1994) 
(DSM-IV).  The DSM-IV criteria for a diagnosis of PTSD 
include: A) exposure to a traumatic event; B) the traumatic 
event is persistently experienced in one or more ways; C) 
persistent avoidance of stimuli associated with the trauma 
and numbing of general responsiveness is indicated by at 
least three of seven symptoms; D) persistent symptoms of 
increased arousal are reflected by at least two of five 
symptoms; E) the duration of the disturbance must be more 
than one month; and F) the disturbance causes clinically 
significant distress or impairment in social, occupational, 
or other important areas of functioning.  DSM-IV, Diagnostic 
Code 309.81.

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 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) (2007).

When the evidence does not establish that a veteran is a 
combat veteran, his assertions of service stressors are not 
sufficient to establish the occurrence of such events.  
Rather, his alleged service stressors must be established by 
official service record or other credible supporting 
evidence.  38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 
Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); 
Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 
Vet. App. 283 (1994).

It is the Board's principal responsibility to assess the 
credibility, and therefore the probative value of proffered 
evidence of record in its whole.  Owens v. Brown, 7 Vet. 
App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 
2000); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); 
Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 
Vet. App. 155 (1993).  In determining whether documents 
submitted by a veteran are credible, the Board may consider 
internal consistency, facial plausibility, and consistency 
with other evidence submitted on behalf of the claimant.  
Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board is not 
required to accept an appellant's uncorroborated account of 
his active service experiences.  Wood v. Derwinski, 1 Vet. 
App. 190 (1991).

The record before the Board contains service medical records 
and post-service medical records, which will be addressed as 
pertinent.  Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (a 
discussion of all evidence by the Board is not required when 
the Board has supported its decision with thorough reasons 
and bases regarding the relevant evidence).

The veteran claims that while serving in Vietnam from June 
1971 to January 1972, he was exposed to stressors that 
support a PTSD diagnosis.  Specifically, he claims that 
during his first night in Da Nang in August 1971, his camp 
was attacked by mortar shells

The veteran's service personnel records show that he served 
in the Army with a military occupational specialty of 
communications and electrical staff officer.  From June 1971 
to October 1971, he served as an electronics maintenance 
officer in Da Nang, Vietnam and his duties included preparing 
operations and maintenance procedures for military 
technicians.  He received the National Defense Service Medal, 
Vietnam Service Medal, Vietnam Campaign Medal, and Bronze 
Star; awards that do not necessarily denote service in 
combat.

The veteran's service medical records are void of findings, 
complaints, symptoms, or diagnoses of any psychiatric 
disorder or PTSD.

The veteran underwent a VA PTSD initial examination in 
February 2003.  He stated that he arrived at Cam Ranh Bay in 
June 1971 and was an electronics officer in charge of 
communications lines and calibrating radar.  He was initially 
assigned to Da Nang and on his first night there, he was 
alone in his tent when the camp was bombarded by mortar 
shells.  He indicated that he felt very alone, was unfamiliar 
with combat, and was not sure what to do. He sat on the floor 
in front of his cot and waited for the bombing to stop.  For 
each successive raid thereafter, he found himself sitting on 
the floor by his cot reliving the incident.  While he was not 
wounded, he claimed that he saw a number of other military 
men that were wounded and mutilated.  He also claimed that he 
had to ride in helicopters to the front lines to fix 
communications and vividly remembered being shot at in the 
helicopter.  He cited the first mortar attack as the most 
traumatic event and was afraid that he might die.  The 
examiner reviewed a letter from the veteran dated in October 
2002 in which he reported feelings of victimization that 
occurred when he felt angry, stressed, or detached from 
people around him.  This resulted in problems sleeping 
including nightmares and night sweats.  His appetite was not 
good and he described his mood as okay.  He had no suicidal 
or homicidal ideation, or any premeditated plan to hurt 
anyone.  On examination, he rarely smiled and showed intense 
eye contact.  Rapport and cooperation were adequate.  Speech 
was within normal limits for rate, flow, and volume.  There 
was some circumstantiality and at times he was difficult to 
follow.  There was a mild paranoid quality to his thinking.  
Overall, the ability to relate was intact for examination 
purposes, but in general the veteran was quite reserved and 
appeared very suspicious at times.  From his own description, 
he was sometimes questioning to a point of being 
confrontational.  His mood was okay and his affect was narrow 
and restricted.  There was no overt evidence of anxiety 
during the examination.  However, he did report anxiety 
symptoms associated with PTSD.  There were no psychotic 
symptoms of hallucinations or delusions.  Memory, mental 
control, attention, and concentration were intact.  Thinking 
was abstract.  Insight, judgment, and impulse control were 
fair.  The examiner indicated that he met the DSM-IV criteria 
for PSTD based upon his exposure to traumatic life events in 
Vietnam during active service, recurrent and intrusive recall 
of those events, recurrent dreams, and anxious reactions to 
some triggers.  He felt detached, distant, and suspicious of 
others, including his wife, and exhibited a very restricted 
range of affect.  He persistently showed problems sleeping, 
irritability, and hypervigilance.

The veteran also underwent a VA PTSD examination in April 
2006.  He complained of repeated and distressing memories of 
the war.  He had flashbacks and dreams about violence, but 
not specifically about Vietnam.  He reported some amnesia 
concerning Vietnam, and suffered from emotional numbness.  He 
tried to avoid thoughts, feelings, and conversations, and 
activities that reminded him of Vietnam.  He had a fear of 
being hurt because of loss and reported that he had a social 
life, but no close friends.  He had problems sleeping and was 
easily started by loud noises.  He reported that he was 
overly alert and easily angered.  He again recounted the 
mortar attack of August 1971 and being shot at in the 
helicopter.  On examination, impulse control was appropriate 
and speech was of normal volume, rate, and rhythm.  He was 
alert and oriented to person, place, and time.  His mood was 
within normal limits as long as he was not thinking about 
Vietnam which made him depressed.  He became angry at times 
and reported that his mood was somewhat labile and that he 
could easily became depressed.  He denied any suicidal or 
homicidal ideation.  Affect was appropriate to content.  No 
perceptual distortions were noted.  Thought content was 
rational and logical and his thought process was sequential 
and goal-directed.  He stated that his memory was within 
normal limits.  The examiner opined that he met the criteria 
for a DSM-IV diagnosis of PTSD.  In a May 2006 addendum to 
the April 2006 VA examination, the examiner further opined 
that the veteran's PTSD was directly related to the August 
1971 rocket attack in Da Nang.

Having determined that the veteran has a valid PTSD 
diagnosis, the remaining question before the Board is whether 
the veteran's PTSD diagnosis is based upon a verified 
stressor.

VA was able to identify the most serious stressor which was 
the August 1971 mortar attack at Da Nang.  In March 2006, 
results of a DPRIS search revealed that the Da Nang Airfield 
received a rocket attack in August 1971.  Accordingly, while 
the veteran's cited stressors of attacks by fire while riding 
in the helicopter have not been corroborated, the Board finds 
that the veteran's stressor of an incoming mortar attacks in 
August 1971 has been corroborated.

Because the veteran's PTSD diagnosis was based, at least in 
part, on a corroborated stressor, the Board finds that 
service connection for PTSD is warranted.  The Board has 
resolved all reasonable doubt in favor of the veteran in 
making this determination.  Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).


ORDER

Service connection for PTSD is granted.


REMAND

Additional development is needed prior to further disposition 
of the remaining claims.

The veteran's claims for service connection for peripheral 
neuropathy of the extremities; and sinusitis/upper 
respiratory distress to include bronchitis, asthma, and 
allergies, were previously denied in a July 1998 rating 
decision.  In a January 2003 rating decision, the RO declined 
to reopen the claims.  While the RO decided that new and 
material evidence sufficient to reopen the claims had not 
been submitted, the Board must consider the question of 
whether new and material evidence has been received because 
it goes to the Board's jurisdiction to reach the underlying 
claims and adjudicate the claims de novo.  Jackson v. 
Principi, 265 F.3d 1366 (Fed. Cir. 2001); Barnett v. Brown, 
83 F.3d 1380 (Fed. Cir. 1996).  The decision of the United 
States Court of Appeals for Veterans Claims in Kent v. 
Nicholson requires that the Secretary look at the bases for 
the prior denial and notify the veteran as to what evidence 
is necessary to substantiate the element or elements required 
to establish service connection that were found insufficient 
at the time of the previous denial.  The question of what 
constitutes material evidence to reopen a claim for service 
connection depends on the basis upon which the prior claim 
was denied.  Kent v. Nicholson, 20 Vet. App. 1 (2006).  In 
this case, the veteran has not yet been notified as to the 
specific evidence necessary to reopen his claims for service 
connection.  On remand, the veteran should be so notified.

Accordingly, the case is REMANDED for the following action:

1.  Send the veteran a corrective notice 
under 38 U.S.C.A. § 5103(a) that (1) 
notifies the veteran of the evidence and 
information necessary to reopen the claims 
for service connection for peripheral 
neuropathy of the extremities; and 
sinusitis/upper respiratory distress to 
include bronchitis, asthma, and allergies, 
(i.e., describes what new and material 
evidence is under the current standard); 
and (2) notifies the veteran of what 
specific evidence would be required to 
substantiate the element or elements 
needed for service connection that were 
found insufficient in the prior denial on 
the merits (i.e., an opinion relating his 
current peripheral neuropathy and 
sinusitis/respiratory disability to his 
period of active service, to an event or 
injury in service, or to a service-
connected disability).

2.  Then review the issues on appeal.  If 
the decision remains adverse to the 
veteran, issue a supplemental statement of 
the case and allow the applicable period 
of time for response.  Then, return the 
case to the Board

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).

These claims must be afforded expeditious treatment.  The law 
requires that claims remanded by the Board or the United 
States Court of Appeals for Veterans Claims for additional 
development or other appropriate action must be handled in an 
expeditious manner.  38 U.S.C.A. §§ 5109B, 7112 (West Supp. 
2007).



______________________________________________
Harvey P. Roberts
Veterans Law Judge, Board of Veterans' Appeals



 Department of Veterans Affairs