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