Citation Nr: 0813034 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 03-25 356 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had active service from April 1967 to January 1971. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of November 2002 by the Department of Veterans Affairs (VA) Waco, Texas, Regional Office (RO). The veteran requested a Travel Board hearing in conjunction with the current claim. The hearing was scheduled and subsequently held in May 2006. The veteran testified before the undersigned Veterans Law Judge (VLJ) and the hearing transcript is of record. The claim currently on appeal was previously before the Board in January 2007 and was remanded for additional evidentiary development. The claim is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The evidence of record shows that the veteran's ship was engaged in combat. 2. The veteran has PTSD that is linked by competent evidence to combat experiences. CONCLUSION OF LAW Post-traumatic stress disorder was incurred in service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Establishing Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also 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). Establishing service connection for PTSD requires that there be (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (2007); (2) a link, established by medical evidence, between current symptoms and an in-service stressor; (3) and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f) (2007); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the DSM-IV and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a). In adjudicating a claim for service connection for PTSD, VA is required to evaluate the supporting evidence in light of the places, types, and circumstances of service, as evidenced by service records, the official history of each organization in which the veteran served, the veteran's military records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a); 38 C.F.R. §§ 3.303(a), 3.304. 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 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 38 C.F.R. § 3.304(d) (2007); see also 38 U.S.C.A. § 1154(b) (West 2002); VAOPGCPREC 12-99. VA General Counsel has held that "[t]he ordinary meaning of the phrase 'engaged in combat with the enemy,' as used in 38 U.S.C.A. § 1154(b), requires that a veteran have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." The determination whether evidence establishes that a veteran engaged in combat with the enemy is resolved on a case-by- case basis with evaluation of all pertinent evidence and assessment of the credibility, probative value, and relative weight of the evidence. VAOGCPREC 12-99; 65 Fed. Reg. 6,256- 58 (February 8, 2000). If VA determines that the veteran did not engage in combat, lay testimony, by itself, is not sufficient to establish the occurrence of the alleged stressor. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Instead, there must be credible supporting evidence. The credible supporting evidence is not limited to service department records, but can be from any source. See YR v. West, 11 Vet. App. 393, 397 (1998); see also Moreau v. Brown, 9 Vet. App. 389, 395 (1996). Further, credible supporting evidence of the actual occurrence of an in-service stressor cannot consist solely of after-the-fact medical nexus evidence. See Moreau, 9 Vet. App. at 396. Factual Background and Analysis In this case, the veteran contends that his PTSD is related to service, and particularly to various events he experienced while serving in the Navy off of the waters of the Republic of Vietnam. Service personnel records (SPRs) reflect that the veteran had active service from April 1967 to January 1971, with service on the U.S.S. Ingersoll (DD-652) from January 1968 to March 1969. The U.S.S. Ingersoll was deployed from June to December 1968 and was eligible for Hostile Fire Pay from July to November 1968. The veteran's military occupational specialty (MOS) was "radar repairman" and his DD-214 Form shows that he was awarded the National Defense Service Medal and the Vietnam Service Medal. According to a statement dated October 2001, the veteran reported the occurrence of numerous stressful events while stationed on the U.S.S. Ingersoll. Notably, the veteran stated that he was aboard the U.S.S. Ingersoll in October 1968 when it "attacked Han Matt Island, about 100 miles North of the DMZ." During this mission, the veteran indicated that at least one of the ships in the attack group came under fire from an enemy gun battery. The Board notes that the 1968 command history of the U.S.S. Ingersoll (DD-652) is associated with the veteran's claims file. During October 1968, the U.S.S. Ingersoll participated in surveillance activities, including Operation Sea Dragon, and engaged enemy watercraft. For instance, on October 27, 1968, the U.S.S. Ingersoll opened fire on "probable enemy traffic" while conducting surveillance off of the coast of North Vietnam with the U.S.S. Canberra (CA-70). Six enemy watercraft were subsequently destroyed. Three days later, on October 30, 1968, the U.S.S. Ingersoll destroyed five watercraft while on patrol approximately 15,000 yards off of the coast of North Vietnam. On October 31, 1968, the U.S.S. Ingersoll destroyed two additional watercraft and forced another watercraft to beach. A bombing halt was proclaimed by the President the following day. Service medical records (SMRs) associated with the veteran's claims file shows that he was afforded a clinical evaluation and physical examination in December 1966 prior to entering service. The clinical evaluation was normal and no psychiatric abnormalities were noted at that time. The veteran described his health as "fair" and provided a medical history in which he specifically admitted to being "always nervous around people." No evidence of PTSD was noted at that time. The veteran was also afforded a clinical evaluation in January 1971 prior to discharge from service. The clinical evaluation was essentially normal, and no psychiatric abnormalities were noted at that time. The first pertinent post-service treatment record is dated November 1997. The veteran presented to VA for a psychiatric evaluation. The examiner administered the Mississippi Combat Stress Scale, Beck Depression Inventory (BDI), and Million Clinical Multiaxial Inventory-II (MCMI-II). The veteran reported participation in "shelling" various targets on land and sinking boats. The veteran also stated that he witnessed a drunken sailor kick a young Chinese girl in the stomach while on shore leave. The examiner noted that the veteran was prescribed Prozac by a private physician, and he diagnosed the veteran as having PTSD as well as depression, not otherwise specified. The veteran underwent additional VA psychiatric evaluation in November 2001. Psychometric testing administered at that time was interpreted to reveal persistent avoidance of stimuli related to the military as well as a numbing of emotional responsiveness. The examiner diagnosed the veteran as having PTSD as well as depression, not otherwise specified. The veteran sought assistance in May 2006 for the purpose of establishing care at a VA medical facility. The veteran's past medical history was significant for anxiety and PTSD. A review of systems found no evidence of depression or treatment for psychiatric disorders. The veteran was diagnosed as having depression, anxiety, and PTSD. The veteran testified before the undersigned VLJ in May 2006. The veteran stated that he was aboard the U.S.S. Ingersoll in North Vietnam shortly before the President authorized a bombing halt. The veteran testified that this ship provided "gunfire support" to the Marines and the Army. The veteran further testified that some of the ships in the attack group were subjected to enemy fire. The veteran acknowledged that his primary duties included maintaining radar systems as an electronics technician. The veteran also indicated that he occasionally had other responsibilities such as being an ammunition handler. The veteran was afforded a VA Compensation and Pension (C&P) Examination in connection with the current claim in October 2007. The veteran reported various periods of service in the Republic of Vietnam, including from June to December 1968. During the examination, the veteran stated that he was mentally healthy prior to entering service. The veteran did not report any psychiatric treatment during service, but the veteran stated that he had a host of "emotional problems" in service and after discharge from service. The veteran indicated that he shelled various shore positions as well as destroyed moving ships at sea while he served in the Navy. The veteran acknowledged that he was involved in activities which led to the death of enemy soldiers. He also claimed that his boat had been "shot at" several times, and he expressed concern over any unintentional killing of civilians that might have occurred in the performance of his duties. The examiner noted that the veteran's major emotional problems from his service in the Navy and in Vietnam stemmed from (1) being "shot at" and (2) feeling guilty about any accidental loss of civilian life while shelling suspected enemy positions and boats. The examiner diagnosed the veteran as having chronic symptoms of post-traumatic stress disorder as well as recurrent major depression. An addendum dated November 2007 indicated that the examiner reviewed the veteran's claims file after the C&P examination and that there was no need for any additions or changes to the initial examination report. The Board notes that veteran's wife and son as well as a co- worker and friends submitted statements in support of his current claim. Generally speaking, each of these statements discussed the veteran's psychiatric problems, identified the symptoms purportedly related to these psychiatric problems, and attempted to link the veteran's current psychiatric problems to his period of service. Associated with the veteran's claims file is a letter dated April 2007 from J.M.R., the commanding officer of the U.S.S. Ingersoll (DD-652). J.M.R. stated: As the Commanding Officer of INGERSOLL during [Fall 1968], I can Certify that the ship conducted gun fire support against Hon Mat Island off the coast of North Vietnam in October 1968 the day before the Bombing Halt was directed by the President. In that operation, INGERSOLL was subjected to gun fire from Hon Mat, however their fall of shot was short by approximately fifty yards. In addition, INGERSOLL conducted shore bombardment against targets in North Vietnam that were spotted by Naval A-7 aircraft when in company with an Australian Destroyer. In night operations during that period, INGERSOLL was successful in sinking numerous Water Borne Logistics Craft in close proximity to the North Vietnam shore. Also associated with the veteran's claims file is a medical opinion dated November 2007 authored by W. Kracke, M.D. Dr. Kracke assessed the veteran's psychiatric condition over a period of five months. During that time, Dr. Kracke obtained a complete childhood and social developmental history, pre-service history, service history, and post- service history from the veteran. Dr. Kracke opined that "with the highest degree of medical certainty," the veteran had "manifested and suffered from Post Traumatic Stress Disorder deriving directly from his military Vietnam Service." Dr. Kracke further indicated that in his opinion, the veteran was more vulnerable to developing PTSD given his "protected and protective childhood" as well as his "somewhat rigid and consequently narrow worldview." Given the evidence of record, the Board concludes that the preponderance of the evidence supports a finding of entitlement to service connection for PTSD in this case. The Board notes that 38 U.S.C.A. § 1154(a) provides that consideration shall be given to the places, types, and circumstances of the veteran's service as shown by his service record, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. In this regard, it is noted that the veteran has a current diagnosis of PTSD and that he served on the U.S.S. Ingersoll (DD-652) during October 1968. The command history of the U.S.S. Ingersoll revealed that the ship was engaged in active combat operations in the Republic of Vietnam during that time. According to the April 2007 statement from J.M.R., the commanding officer, the U.S.S. Ingersoll was also subjected to enemy fire in October 1968 while on patrol. The U.S.S. Ingersoll returned fire destroying enemy land positions and watercraft. Additionally, the Board notes that the October 2007 VA examination report and the November 2007 medical opinion from Dr. Kracke linked the veteran's current PTSD to his period of active service, and in particular, to his service on a ship that engaged in combat in the Republic of Vietnam. Accordingly, the Board finds that the criteria of entitlement to service connection for PTSD have been met. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist veterans 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. ORDER Service connection for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs