Citation Nr: 0814711 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 05-13 672 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan THE ISSUES 1. Entitlement to service connection for post traumatic stress disorder (PTSD). 2. Entitlement to service connection for diabetes mellitus, including as secondary to herbicide exposure. 3. Entitlement to service connection for a cardiovascular disability, including as secondary to herbicide exposure and secondary to diabetes mellitus. 4. Entitlement to service connection for erectile dysfunction, including as secondary to herbicide exposure and secondary to diabetes mellitus. 5. Entitlement to service connection for peripheral neuropathy of the upper extremities, including as secondary to herbicide exposure and secondary to diabetes mellitus. 6. Entitlement to service connection for peripheral neuropathy of the lower extremities, including as secondary to herbicide exposure and secondary to diabetes mellitus. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD Amy R. Grasman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1968 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 RO decision denying service connection for diabetes mellitus, a cardiovascular disability, erectile dysfunction and peripheral neuropathy. In February 2007, the Board denied the veteran's claims. The veteran subsequently appealed to the United States Court of Appeals for Veterans Claims (Court). A Joint Motion for Remand was filed in February 2008. By Order of the Court in February 2008, the motion was granted and the appeal was remand to the Board. This appeal also comes before the Board from a July 2005 RO decision denying service connection for PTSD. The Board notes that a VA Form 8, Certification of Appeal is not associated with the claims file; however, in January 2007 the veteran submitted an Appeal to the Board (VA Form 9) from the denial of service connection for PTSD and perfected his appeal. The issues of service connection for diabetes mellitus, a cardiovascular disability, erectile dysfunction and peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran has been notified of the evidence necessary to substantiate his claim, and all relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran was diagnosed with PTSD related to his claimed in-service stressors by competent medical evidence and the stressors have been corroborated by lay statements. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 claimants 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 regarding the issue of service connection for PTSD, 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. Service connection may be granted for a disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for a disability shown after service, when all the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503, 505 (1992). For service connection to be awarded for PTSD, the record must show: (1) a current medical diagnosis of PTSD; (2) medical evidence of a causal nexus between diagnosed PTSD and the claimed in-service stressor; and (3) combat status or credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). In this case, the veteran was diagnosed with PTSD by a psychologist at the Vet Center in November 2004. The psychologist also considered the veteran's experiences in service and opined that the veteran was permanently impaired both occupationally and interpersonally as a result of PTSD caused by his assignment in Thailand, in support of troops in Vietnam. In reviewing the veteran's claimed in-service stressors, the Board notes that where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 138 (1997). Therefore, the only issue for the Board is whether the claimed in-service stressor actually occurred. Evidence necessary to establish that the claimed in-service stressor actually occurred varies depending on whether it can be determined that the veteran "engaged in combat with the enemy." 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d). As in this case, the veteran indicated and the DD 214s confirmed that the veteran did not "engage in combat with the enemy." As such, the veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. Moreau v. Brown, 9 Vet. App. 389, 395-96 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other corroborative evidence that substantiates or verifies the veteran's testimony or statements as to the occurrence of the claimed stressor. West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). A medical opinion diagnosing PTSD does not suffice to verify the occurrence of the claimed in-service stressors. Moreau, 9 Vet. App. at 395-96. According to service records, the veteran was stationed in Ramasun Station, Thailand in December 1973 for 12 months. He was a Staff Sergeant in the 6924th Security Squadron of the United States Air Force Security Service (USAFSS). The Board also notes that the information in the service records about the veteran's current assignment was considered sensitive information that was restricted or classified. The DD214 shows that the veteran had a Top Secret EBI (Extended Background Investigation) and was a radio communications analyst technician. The veteran has also submitted personal statements regarding his experiences in service. In January 2005 and August 2006, the veteran responded to the RO's request for information regarding his claimed stressor. In his statements, the veteran indicated that he was stationed on an intelligence gathering site in the northern providence of Thailand which was considered a "hot zone." He indicated that he had Top Secret codeword security clearance. He stated that he was never issued a weapon while stationed at Ramasun Station. The veteran described his experiences in Thailand. He indicated that there was constant insurgent activity around the base the entire 12 months he was there. He stated that the base was constantly going to a "condition red" defense posture due to insurgent activity. They also had nationals working on the base, which he stated caused stress because he never knew if nationals were friendly or insurgents. He stated that going off base was greatly discouraged, especially after dark, due to the danger of being shot. He stated that he never knew if he would get shot at while running on the base perimeter road to stay in shape. The veteran stated that his Top Secret clearance allowed him access to classified information about the North Vietnam Air Force and its communication network and encryption systems. The veteran stated that he knew that there were insurgents operating around the base and if there was an attack, he was instructed to destroy the intercept classified equipment with thirmite grenades. The veteran indicated that he was always on heightened alert for fear of an attack, being captured and interrogated. He stated that not having a weapon increased his stress as he could not defend himself. The veteran also indicated that the Air Force does not issue a Combat Infantry Badge; however, he was paid hazard duty supplement due to the location of the Ramasun Station and the nature of his mission. The veteran indicated that he constantly feared being attacked or captured while at Ramasun. He also stated that due to his knowledge, he knew that he was living in an obviously valuable target that was known to the enemy and it was only a mater of time before they would be destroyed and captured. The veteran stated that he did not trust the Thai guards at the Station and never knew if he would wake up from sleeping or be killed. The veteran indicated that living with constant fear and stress in Thailand caused his PTSD as he continued to live with an elevated stress level with hypervigilance and tension that was unacceptable to his social and occupational life. Also in August 2006, the veteran submitted a handwritten statement from his immediate supervisor while in service. The statement indicated that the veteran was assigned to the 6924th Security Squadron which was part of the United Sates Air Force Security Service in Ramasun, Station in northern Thailand. The statement indicated that the veteran was an intelligence analyst. In December 2006, the veteran submitted a notarized statement from a Sergeant who was a member of the 6924th Security Squadron in Ramasun Station, Udorn, Thailand at the same time as the veteran. The Sergeant stated that he was assigned to the same squadron barracks and worked together on the same operations flight as the veteran. They also had the same Master Sergeant. The Sergeant indicated that he read the veteran's September 2004 statement that described the conditions at Ramasun Station. The Sergeant stated that he totally agreed with the information in the veteran's statement. He stated that the veteran's statement was true and correct and to the best of his knowledge and sincerely supported the veteran's statement. The Board finds that the veteran is entitled to service connection because his claimed in-service stressor has been verified by lay evidence. "Competent lay evidence" means "any evidence not requiring that the proponent have specialized education, training, or experience." Lay evidence is competent "if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person." 38 C.F.R. § 3.159(a)(2); See Bruce v. West, 11 Vet. App. 405, 410-11 (1998). Furthermore, in a PTSD case, lay evidence alone is sufficient to verify an alleged stressor. See Stone v. Nicholson, 480 F.3d 1111 (Fed. Cir. 2007) (lay evidence alone is sufficient to corroborate the occurrence of an in-service stressor, although a person's own statements cannot serve as corroboration of the facts contained in those statements). The Board finds that although the veteran's own statement cannot serve as credible corroboration of his own allegations as to in-service stressors, the lay statements that the veteran submitted are sufficient to corroborate the veteran's claimed stressors. The statement from the Sergeant and Master Sergeant sufficiently corroborate the described stressors that the veteran experienced in service. The Board finds that the lay statements are credible evidence of the veteran's in service stressors because the lay witnesses had knowledge of the facts and circumstances of the veteran's service. The nature of the veteran's specialty in service could be observed and described by the lay witnesses because they were of the same specialty and squadron as the veteran. Additionally, the lay statements show that the veteran's account of his history, which was the basis of the psychologist opinion linking his PTSD to service, is reliable. As there is a current diagnosis of PTSD, a psychologist opinion of a causal nexus between the diagnosed PTSD and the claimed in-service stressors as well as credible supporting lay evidence that the claimed in-service stressors actually occurred, service connection is warranted. ORDER Service connection for PTSD is granted. REMAND In accordance with the Joint Motion for Partial Remand, the issues of service connection for diabetes mellitus, a cardiovascular disability, erectile dysfunction and peripheral neuropathy must be remanded for additional development. The veteran asserts that he was exposed to herbicides in Vietnam. Service connection may shown through statutory presumptions. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Diseases associated with exposure to certain herbicide agents used in support of military operations in Vietnam, during the Vietnam era, will be considered to have been incurred in service. 38 U.S.C.A. § 1116(a)(1). The diseases associated with herbicide exposure include diabetes mellitus and acute and subacute peripheral neuropathy. 38 C.F.R. § 3.309(e). A veteran who, during active service, served in Vietnam during the Vietnam era and has a disease associated with herbicide exposure for purposes of the presumption, shall be presumed to have been exposed during such service to an herbicide agent containing dioxin, such as Agent Orange, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The presumption may be rebutted by affirmative, though not necessarily conclusive, evidence to the contrary. 38 U.S.C.A. § 1113(a); 38 C.F.R. § 3.307(d). A veteran is presumed to have been exposed to herbicides if he served in Vietnam between January 9, 1962, and May 7, 1975, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during service. See 38 U.S.C.A. § 1116(f). "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The RO attempted to determine if the veteran had service in Vietnam or was exposed to herbicides in service. An initial response from the Personnel Information Exchange System (PIES) in July 2004 did not reveal records regarding service in Vietnam or exposure to herbicides. The veteran provided a statement in December 2004 asserting that he was on a flight that stopped at Da Nang Air Base and Tan Son Nhut Air Base in Vietnam in December 1973. He also indicated that in December 1974 he was on a flight that landed in Tan Son Nhut Air Base in Vietnam and he exited the plane in Vietnam for approximately an hour. The personnel file and flight manifests have not been requested by the RO. Additionally, the veteran asserts that his cardiovascular disability, erectile dysfunction and peripheral neuropathy were caused by or aggravated by his diabetes mellitus. The Board notes that there is a September 2004 VA Compensation and Pension Examination of record that partially addressed the veteran's secondary claims, however, the RO did not adjudicate these claims. Furthermore, the issue of service connection for diabetes mellitus must be further developed and decided before the secondary claims can be adjudicated by the RO. Therefore, the Board finds that additional development is required to determine if the veteran was exposed to herbicides in service. After a determination of the veteran's claim for diabetes mellitus is developed and decided, the secondary claims must then be adjudicated. Accordingly, the case is REMANDED for the following action: 1. The RO should send the veteran proper VCAA notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding service connection for the veteran's claims, including his secondary service connection claims. The notice should also include an explanation as to the information or evidence needed to establish a disability rating and effective date for the claims on appeal, as outlined by the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The veteran should be afforded the appropriate period of time for response to all written notice and development as required by VA law 2. The RO must contact the appropriate agency to obtain a copy of the veteran's entire military personnel file. The RO should also attempt to obtain the flight manifests from the December 1973 and December 1974 flights as the veteran described from the U. S. Army and Joint Services Records Research Center (JSRCC) or other appropriate agency. All efforts to obtain these records should be fully documented. If the records are not available, a negative response should be provided. 3. After any additional notification or development that the RO deems necessary is undertaken, the veteran's claims should be readjudicated. If any benefit sought on appeal remains denied, the veteran and his representative should be provided with a supplemental statement of the case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issues. An appropriate period of time should be allowed for response by the veteran and his representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs