Citation Nr: 0810319	
Decision Date: 03/28/08    Archive Date: 04/09/08

DOCKET NO.  05-34 868	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, 
South Carolina


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 his spouse


ATTORNEY FOR THE BOARD

Patrick J. Costello, Counsel


INTRODUCTION

The veteran had active service from September 1968 to 
September 1970; that service included service in the Republic 
of Vietnam.  

This appeal comes before the Board of Veterans' Appeals 
(Board) from a November 2004 rating decision by the Columbia, 
South Carolina, Regional Office (RO) of the Department of 
Veterans Affairs (VA).  

The veteran provided testimony before an Acting Veterans Law 
Judge via a video conference hearing in August 2007; a 
transcript of that hearing was produced and a copy thereof 
has been included in the claims folder for review.  In 
February 2008, the veteran was informed that the Acting 
Veterans Law Judge who presided over his hearing would not be 
able to render a decision on the merits of the veteran's 
claim.  The veteran was asked whether he wished to provide 
testimony before a different Veterans Law Judge.  The veteran 
responded in the negative.  


FINDINGS OF FACT

1.  The VA has fulfilled, to the extent possible, its notice 
and duty to assist duties to the appellant by obtaining and 
fully developing all relevant evidence necessary for the 
equitable disposition of the issue addressed in this 
decision.

2.  The veteran was an Army combat engineer and he served on 
active duty in the Republic of Vietnam.  

3.  The veteran has been diagnosed as suffering from PTSD.  

4.  VA officials have linked the veteran's PTSD with the 
stressors he experienced while on active duty in Vietnam.  




CONCLUSION OF LAW

Resolving all reasonable doubt in the appellant's favor, PTSD 
was incurred in or aggravated by the veteran's military 
service.  38 U.S.C.A. §§ 1101, 5107 (West 2002 & Supp. 2006); 
38 C.F.R. §§ 3.303, 3.304 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The veteran has petitioned the VA asking that service 
connection be granted for an acquired psychiatric disorder, 
to include PTSD.  He has claimed that while stationed in the 
Republic of Vietnam in 1969 and 1970 he saw numerous trucks 
blown up in front of him.  He says that he saw bodies and 
body parts strewn over the landscape.  He contends that he 
still suffers from flashbacks and nightmares of those 
incidents, along with others, and experiences depression and 
anxiety.  As such, he asks that VA compensation benefits be 
assigned for a psychiatric disorder he claims should be 
classified as PTSD.

The Veterans Claims Assistance Act of 2000 (VCAA) describes 
VA's 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. 2006); 38 C.F.R. 
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007).

Upon receipt of a complete or substantially complete 
application for benefits, VA is required to notify the 
claimant and his or her representative, if any, of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) 
(West 2002 & Supp. 2006); 38 C.F.R. § 3.159(b) (2007); 
Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA 
notice must inform the claimant of any information and 
evidence not of record (1) that is necessary to substantiate 
the claim; (2) that VA will seek to provide; (3) that the 
claimant is expected to provide; and (4) must ask the 
claimant to provide any evidence in her or his possession 
that pertains to the claim in accordance with 38 C.F.R. § 
3.159(b)(1).  VCAA notice should be provided to a claimant 
before the initial unfavorable agency of original 
jurisdiction (AOJ) decision on a claim.  Pelegrini v. 
Principi, 18 Vet. App. 112 (2004); see also Mayfield v. 
Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 
444 F. 3d 1328 (Fed. Cir. 2006).

The Board finds that the Agency of Original Jurisdiction 
(AOJ) has substantially satisfied the duties to notify and 
assist, as required by the VCAA.  To the extent that there 
may be any deficiency of notice or assistance, there is no 
prejudice to the appellant proceeding with this issue given 
the favorable nature of the Board's decision with regard to 
the issue of service connection.

The veteran has contended that while stationed in Vietnam, he 
was constantly exposed to artillery fire and explosions.  He 
maintains, although this particular item has not been 
verified via independent sources, that other individuals who 
were stationed with his unit, were killed and/or maimed due 
to exploding trucks and land mines.  He further says he was 
constantly worried that he would be killed through the 
performance of his duties as a combat engineer, or he would 
be maimed by stepping on an unmarked or forgotten land mine.  
He avers that this fear has produced nightmares and 
flashbacks that he continues to suffer therefrom.  In 
summary, the veteran, along with his representative, has 
claimed that all of these factors were stressful situations 
which, in turn, led to the development of PTSD, from which 
the veteran now suffers.

The record reflects that the veteran served in Vietnam with 
the 35th Combat Engineer Battalion.  This battalion 
participated in the Tet Counteroffensive while the veteran 
was in-country (in 1969).  The battalion also provided 
support during Counteroffensive Phase IV.  The veteran's US 
Army military occupational specialty (MOS) were those of 
12A12 [pioneer] and 12B20 [combat engineer].  His DD Form 214 
notes that the veteran was issued a National Defense Service 
Medal, Army Commendation Medal, Vietnam Service Medal with 
three bronze service stars, and the Vietnam Campaign Medal 
with 60 devise.  The official records do not show that the 
veteran was awarded a personal or unit valour award, such as 
a Bronze Star Medal for Valor, a Purple Heart Medal, or a 
Presidential Unit Citation.  The record also does not show 
that the veteran fired his personal weapon at the enemy such 
that he might have been awarded a Combat Infantryman Badge or 
a similar award from the Army.

Under 38 U.S.C.A. §38 U.S.C.A. §§ 1110, 1131 (West 2002) and 
38 C.F.R. § 3.303(b) (2007), service connection may be 
awarded for a "chronic" condition when:  (1) a chronic 
disease manifests itself and is identified as such in service 
(or within the presumption period under 38 C.F.R. § 3.307) 
and the veteran presently has the same condition; or (2) a 
disease manifests itself during service (or during the 
presumptive period), but is not identified until later, and 
there is a showing of continuity of related symptomatology 
after discharge, and medical evidence relates that 
symptomatology to the veteran's present condition.  Savage v 
Gober, 10 Vet. App. 488, 495-98 (1997).

To grant service connection, it is required that the evidence 
shows the existence of a current disability, an in-service 
disease or injury, and a link between the disability and the 
in-service disease or injury.  Watson v. Brown, 4 Vet. App. 
309, 314 (1993).  This principle has been repeatedly 
reaffirmed by the United States Court of Appeals for the 
Federal Circuit, which has stated that ". . . a veteran 
seeking disability benefits must establish . . . the 
existence of a disability [and] a connection between the 
veteran's service and the disability."  Boyer v. West, 210 
F.3d 1351, 1353 (Fed. Cir. 2000).

In addition, disability which is proximately due to or the 
result of a service-connected disease or injury shall be 
service-connected.  38 C.F.R. § 3.310 (2007).  The Court has 
held that when aggravation of a veteran's nonservice-
connected disability is proximately due to or the result of a 
service-connected disease or injury, it too shall be service-
connected.  Allen v. Brown, 7 Vet. App. 439, 446 (1995).

The Court has further held that ". . . where the 
determinative issue involves medical causation or a medical 
diagnosis, competent medical evidence is required."  
Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); see also 
Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (The Court 
held that a witness must be competent in order for his 
statements or testimony to be probative as to the facts under 
consideration).  The Court has also held that "Congress 
specifically limits entitlement for service-connected disease 
or injury to cases where such incidents have resulted in a 
disability.  In the absence of proof of a present disability 
there can be no valid claim."  Brammer v. Brown, 3 Vet. App. 
223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 
141, 143-44 (1992).

Moreover, service connection connotes many factors, but 
basically, it means that the facts, as shown by evidence, 
establish that a particular injury or disease resulting in 
disability was incurred coincident with service.  A 
determination of service connection requires a finding of the 
existence of a current disability and a determination of a 
relationship between that disability and an injury or disease 
in service.  See Pond v. West, 12 Vet. App. 341 (1999); 
Watson v. Brown, 4 Vet. App. 309, 314 (1993).

Eligibility for a PTSD service connection award requires that 
three elements must be present according to VA regulations:

(1) medical evidence diagnosing the 
condition in accordance with 38 C.F.R. § 
4.l25(a);

(2) credible supporting evidence that the 
claimed inservice stressor actually 
occurred; and

(3) a link, established by medical 
evidence, between the current symptoms 
and the claimed inservice stressor.

38 C.F.R. § 3.304(f) (2007).  See Cohen v. Brown, 10 Vet. 
App. 128, 138 (1997).  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.  See also 38 U.S.C.A. § 
1154(b) (West 2002).

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.  38 
C.F.R. § 3.304(t) (2007).

In the case of Cohen, supra, 10 Vet. App. 128 (1997), the 
Court took judicial notice. of the mental health profession's 
adoption of the DSM-IV in May 1994 (first printing) and its 
more liberalizing standards to establish a diagnosis of PTSD, 
specifically, a change from an objective "would evoke. . . 
in almost anyone" standard in assessing whether a stressor 
is sufficient to trigger PTSD, to a subjective standard - 
would a person's exposure to a traumatic event and response 
involving intense fear, helplessness, or horror.  Hence, the 
Court noted that a more susceptible person could have PTSD 
under the DSM-IV criteria given his or her exposure to a 
traumatic event that would not necessarily have the same 
effect on "almost everyone."  Cohen, 10 Vet. App. 128, 140- 
41 (1997). .

For the purposes of establishing service connection, a 
stressor is an event experienced by the veteran during active 
service that is outside the range of normal human experience 
and that would be markedly disturbing to almost anyone.  
Examples of such events are experiencing an immediate threat 
to one's life, or witnessing another person being seriously 
injured or killed.  It is the distressing event, rather than 
the mere presence in a "combat zone" that may constitute a 
valid stressor for the purposes of supporting a diagnosis of 
PTSD.  See Zarycki v. Brown, 6 Vet. App. 91, 99 (1993); Wood 
v. Derwinski, 1 Vet. App. 190, 193 (1991).

Relative to PTSD, if the evidence shows that the veteran was 
engaged in combat with the enemy and the claimed stressor was 
related to combat, no further development for evidence of a 
stressor is necessary.  If the claimed stressor is not 
related to combat with the enemy, a history of a stressor as 
related by the veteran is, in itself, insufficient.  Service 
records must support the assertion that the veteran was 
subjected to a stressor of sufficient gravity to evoke the 
symptoms in almost anyone.  Thus, the existence of a 
recognizable stressor or accumulation of stressors must be 
supported.  It is important that the stressor be described as 
to its nature, severity, and date of occurrence.  Manual M21-
1, Part VI, para. 7 .46( e ),( f) (Dec. 21, 1992).

Additionally, with regard to the second criterion, the 
evidence necessary to establish that the claimed stressor 
actually occurred varies depending on whether the veteran 
"engaged in combat with the enemy."  38 U.S.C.A. § 1154(b) 
(West 2002).  "Where it is determined, through recognized 
military citations or other supportive evidence, that the 
veteran was engaged in combat with the enemy and the claimed 
stressors are related to such combat, the veteran's lay 
testimony regarding claimed stressors must be accepted as 
conclusive as to their actual occurrence and no further 
development for corroborative evidence will be required, 
provided that the veteran's testimony is found to be 
'satisfactory,' e.g., credible, and 'consistent with the 
circumstances, conditions, or hardships of [combat] 
service.'"  Zarycki, supra; 38 U.S.C.A. § 1154(b) (West 
2002); 38 C.F.R. § 3.304(d), (f) (2007).

The veteran's principal claimed stressors have nothing to do 
with combat per se or being fired upon by the enemy.  The 
stressors are however related to the veteran being in a war 
zone or hostile territory.  The stressors do involve the 
veteran being in an area that received rocket or mortar fire 
and deal with landmines and explosives.  However, despite the 
veteran's service in a hostile area, he never received awards 
and decorations that would substantiate his combat-related 
assertions.  Nevertheless, the veteran may be deemed to have 
served in a war area if it is shown that the veteran was 
stationed in a location that subjected him to combat-type 
situations.  See Pentecost v. Principi, 16 Vet. App. 124 
(2004).

The veteran and his representative have proffered numerous 
statements that discuss the veteran's duties and observations 
while the veteran was stationed in Vietnam during the Tet 
Counteroffensive and other campaigns from 1969 to 1970.  The 
Board takes judicial notice that during this time period 
there were numerous clashes between the North and South 
Vietnamese and their American counterparts.  Moreover, 
because of the veteran's military occupational specialty, he 
was involved in the performance of duties that subjected him 
to the possibility of being blown up by explosives.  

Given the time period during which the veteran was assigned 
to South Vietnam, the type of incidents he reported that were 
stressful, and the fact that the veteran was assigned to an 
MOS traditionally associated with combat-type duty, the Board 
finds this information is sufficient to verify that the 
veteran was exposed to significant, life-affecting stressors.  
See Pentecost v. Principi, 16 Vet. App. 124 (2002).  After 
review of the evidence the Board finds that service personnel 
records and the historical information concerning the 
veteran's unit, and similar units, proffered by the veteran 
and his representative, establish that the veteran served in 
a hostile area.  As his stressors are consistent with service 
as a combat engineer and an individual stationed in a hostile 
territory, the Board finds no further verification of the 
veteran's stressors are necessary.

During the course of this appeal, the veteran has been 
treated by VA medical providers, and they have concluded that 
he suffers from the symptoms and manifestations of post-
traumatic stress disorder.  They have diagnosed the veteran 
as actually having the disorder and he has undergone 
treatment for this mental disorder.  They have concluded that 
the veteran's PTSD was and is the result of his service in 
Vietnam.

In determining whether service connection is warranted, the 
VA must determine whether the evidence supports the claim or 
is in relative equipoise, with the veteran prevailing in 
either event, or whether the evidence is against the claim, 
in which case service connection must be denied.  38 U.S.C.A. 
§ 5107 (West 2002 & Supp. 2006); Gilbert v. Derwinski, 1 Vet. 
App. 49 (1990).  The record presents a valid diagnosis of 
PTSD related to stressful experiences the veteran reported he 
underwent during his service in Vietnam.  Accordingly, after 
careful review of all the evidence of record, the Board finds 
that the veteran manifests PTSD that is the result of 
stressors he experienced while in Vietnam.  The Board 
therefore concludes that service connection for PTSD is 
appropriate.




ORDER

Entitlement to service connection for PTSD is granted.



____________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs