Citation Nr: 0811190 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-08 522 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Scott Walker, Associate Counsel INTRODUCTION The veteran served on active duty from October 1966 to May 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. FINDING OF FACT The veteran's PTSD diagnosis has been attributed to a verified in-service stressor. CONCLUSION OF LAW PTSD was incurred during the veteran's period of active service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.304(f) (2007). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) There has been a significant change in the law with the enactment of VCAA. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002). In the instant case, the appellant's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and non- prejudicial. Evidence and Background According to the veteran, he was stationed in Xuan Loc with HHB (Headquarters and Headquarters Battery), 2nd Battalion, 35 Artillery from 1967 to 1969. He stated that, while there, his unit was attacked several times. He also claimed to have seen a friend, G. U., killed during combat. The veteran attested that he was in combat as a radio operator. According to his records, he was a wireman from April 1967 to June 1968, a switchboard operator from June 1968 to September 1968, a senior wireman from September 1968 to December 1968, and a switchboard operator from December 1968 to May 1969. The veteran filed a claim for service connection for PTSD in December 2003. He was diagnosed with major depression, dysthymia, and PTSD in November 2003 at Memorial Hospital in Marysville, Ohio. A November 2004 letter from a licensed social worker, and a March 2004 letter from another private physician confirm a diagnosis of PTSD. The veteran was afforded a VA examination in June 2004. At that time, the veteran was diagnosed with dysthymia, not PTSD. According to the examiner, he had a traumatic experience in the military and reported symptoms such as nightmares, anxiety, and clear- cut flashbacks, but the veteran did not have a "complete history for a PTSD diagnosis." In a VA outpatient treatment record dated in October 2004, the diagnosis was depression, not otherwise specified, and bipolar disorder and PTSD were to be ruled out. An August 2004 rating decision deferred his rating decision, pending the receipt of the veteran's stressor verification. Subsequently, a December 2004 rating decision denied the veteran's claim due to the lack of a verified stressor. Since the veteran's last VA examination, his stressor events were reported by the RO to be verified in a February 2005 statement of the case. At that time, the RO noted that the veteran's service medical records showed that while in Vietnam, the veteran received treatment at the 93rd Evacuation Hospital, APO 96491. Other treatment was at the Battalion Aid Station, 2/35 Arty. The RO noted further that the HHB, 2/35 Arty was at APO 96376. The veteran's service personnel records were noted to show that the veteran served in Vietnam from March 30, 1967 to May 27, 1969. The veteran's unit of assignment during that entire period of time was HHB, 2nd Battalion, 35th Artillery. His military occupational specialty during that time was shown as a wireman and switchboard operator. Information obtained by the RO included a Military Postal Service Agency Directory of APO Zip Codes which showed that during the applicable period, APO zip code 96491 was Long Binh, Vietnam, and APO zip code 96376 was Xuan Loc, Vietnam. The RO noted further that an internet article of record confirmed that on May 18, 1969, U.S. and South Vietnamese camps at Xuan Loc came under intense fighting from more than 1,500 Communist troops. The RO concluded that the evidence showed that the veteran served in Xuan Loc in Vietnam and that during his time there, Xuan Loc experienced at least two major attacks with significant fighting. As a result, the RO found that there was credible supporting evidence of combat and the existence of an in- service stressor was established. However, the veteran's claim remained denied, due in part to the June 2004 VA examination. The RO noted that the evidence must show a diagnosis of PTSD in accordance with DSM-IV linked to the in- service stressor. In this case, the RO found that although a private hospital report and a statement from a social worker indicate that the veteran has PTSD, the VA examination report and VA outpatient treatment records show that that the veteran has been seen by multiple VA psychiatrists who have all concluded that the veteran has dysthymia or depression and not PTSD. More probative weight was accorded the VA doctors because of their greater experience and level of training in this area than the private examiners. Law and Analysis Service connection is granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2007). Service connection for PTSD, in particular, requires medical evidence establishing a diagnosis in accordance with 38 C.F.R. § 4.125(a) (the diagnosis must conform to DSM-IV and be supported by findings on examination), credible supporting evidence that the claimed in-service stressors actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressors. 38 C.F.R. § 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128, 137-138 (1997). 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," as established by recognized military combat citations or other official records. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 66 (1993); Doran v. Brown, 6 Vet. App. 283, 289 (1994). If VA determines that 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 the circumstances, conditions, or hardships of service." See 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). If, however, VA determines either that the veteran did not engage in combat with the enemy or that he did engage in combat, but that the alleged stressor is not combat related, then his lay testimony, in and of itself, is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain other objective information that corroborates his testimony or statements. See Zarycki, 6 Vet. App. at 98. When there is a current diagnosis of PTSD, the sufficiency of the claimed in-service stressor is presumed. Cohen, 10 Vet. App. at 144. Nevertheless, credible evidence that the claimed in-service stressor actually occurred is still required. 38 C.F.R. § 3.304(f). And credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). Corroboration does not require, however, "that there be corroboration of every detail including the appellant's personal participation in the identifying process." Suozzi v. Brown, 10 Vet. App. 307, 311 (1997). Mere presence in a combat zone is not sufficient to show that a veteran actually engaged in combat with enemy forces. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), affirmed on reconsideration, 1 Vet. App. 406 (1991). On the other hand, whether a veteran has submitted sufficient corroborative evidence of claimed in-service stressors is a factual determination. Pentecost v. Principi, 16 Vet. App. 124 (2002). In both Pentecost and Suozzi, it was held that specific evidence that a veteran was actually with his unit at the time of an attack is not required to verify that attack as a PTSD stressor. Pentecost, 16 Vet. App. at 128 (holding that the Board erred in "insisting that there be corroboration of the veteran's personal participation"); Suozzi, 10 Vet. App. 310-11 (evidence that veteran's company received heavy casualties during an attack, even without specific evidence that the veteran was "integrally involved in the attack" was sufficient to reopen his claim for service connection for PTSD). Pursuant to the holdings in Pentecost and Suozzi, there does not need to be corroboration of each and every detail of a veteran's personal participation in the alleged combat activity in Vietnam. Rather, the mere fact that his unit was involved in that combat activity is reason enough, alone, to presume that he experienced the type of stressor alleged in that capacity. Thus, his combat stressor must be conceded in light of the information obtained by the RO, particularly when all reasonable doubt is resolved in his favor concerning this matter. See 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The veteran contends that he developed PTSD as a result of stressors experienced during active service. According to the veteran, he saw friends die, and he had to shoot people when stationed in Vietnam. He provided the name of his best friend in service for the purposes of stressor verification. An unofficial unit history was also provided. A diagnosis of PTSD was provided in November 2003 by a physician at Memorial Hospital in Marysville, Ohio. According to the medical report, the veteran suffered flashbacks and nightmares as a result of combat in Vietnam. The veteran also had a long history of depression and troubling personal circumstances prior to enlistment. A strained family relationship was also reported, as was suicidal ideation and frequent alcohol consumption. Ultimately, he was diagnosed with major depression, dysthymia, and PTSD. In a November 2003 report, a licensed social worker stated that he had diagnosed the veteran as having PTSD. In a March 2004 letter, another private physician verified that the veteran had been diagnosed as having post-traumatic stress syndrome through Behavioral Health Services. Although the November 2003 medical report did not note a review of the veteran's claims file, the history reported by the veteran was verified by the RO. Thus, the Board will not reject the opinion. Reliance on a veteran's statements renders a medical report incredible only if the Board rejects the statements of the veteran. Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board may reject a medical opinion that is based on facts provided by the veteran that have been found to be inaccurate because other facts present in the record contradict the facts provided by the veteran that formed the basis for the opinion. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005). In this case, the veteran's stressor statements were noted to be confirmed by the RO after obtaining evidence that essentially corroborated the veteran's stressors. As noted, the RO found that the evidence of record demonstrated that the veteran's unit was in Xuan Loc and that, while there, experienced at least two major attacks with significant fighting. Therefore, the Board finds this medical opinion to be probative, as it reflects an accurate personal history as provided by the veteran. A June 2004 VA examiner found that the veteran did not have "clear-cut complete history of posttraumatic stress disorder diagnosis." He stated that the veteran had mild PTSD symptoms and reported a traumatic experience while in the military. A PTSD diagnosis was not rendered because his symptoms were not fitting the complete criteria for PTSD. However, the examiner failed to state, with specificity, which criteria were absent from the veteran's record to warrant a PTSD diagnosis and it is unclear as to whether the fact that the claimed stressors had not as of the time of the examination been verified impacted the diagnosis at the time. The Board again notes that, at that time, the veteran's stressor statements remained unverified. Therefore, contrary medical opinions exist. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given the claimant. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). When the positive and negative evidence as to a claim is in approximate balance, thereby creating a reasonable doubt as to the merits of a claim, the claimant prevails. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is inapplicable. Id. at 1365. In this case, the evidence is, at the least, in relative equipoise. Although the RO accorded greater weight to the VA examiner's opinion, the Board finds deficiencies in both the VA and private examiners' opinions. While the private medical opinions lack a reported structure consistent with DSM-IV criteria, the VA examiner's opinion is also similarly lacking in this regard. The VA examiner did not did not clarify which of the DSM-IV criteria were absent from the veteran's record. The Board notes that neither the Board nor the veteran is competent to supplement the record with unsubstantiated medical conclusions. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Conversely, health professionals are experts and are presumed to know the requirements applicable to their practice and to have taken them into account in providing a diagnosis. Cohen, supra. Therefore, the Board finds that there is an approximate balance of positive and negative evidence, and that the benefit of the doubt shall be given to the veteran. In sum, private medical evidence dated after the veteran was discharged from service satisfies the first and second elements of a PTSD claim under the criteria of 38 C.F.R. § 3.304(f), because it shows that the veteran has been diagnosed as having PTSD as a result of stressful incidents he reportedly experienced during service. Having submitted a diagnosis of PTSD and evidence linking PTSD to claimed in- service stressors, the Board must look to whether the record contains credible supporting evidence that any of the claimed in-service stressors occurred. Because the veteran's stressor statements were reported to be confirmed by the RO, service connection for PTSD is warranted. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs