Citation Nr: 0911049 Decision Date: 03/25/09 Archive Date: 04/01/09 DOCKET NO. 07-39 526 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to service connection for post-traumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD Elizabeth Miheikin, Law Clerk INTRODUCTION The Veteran served on active duty from August 1972 to August 1975, and from September 1977 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) from a July 2006 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for PTSD. FINDING OF FACT The Veteran has been diagnosed with PTSD that is medically attributed to a stressor he experienced during his service. CONCLUSION OF LAW PTSD was incurred in or aggravated by the Veteran's active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2008). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection for certain chronic diseases, including psychoses, will be rebuttably presumed if they are manifest to a compensable degree within one year following active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2008). However, PTSD is not classified as a psychosis, and service connection for PTSD accordingly may not be granted on a presumptive basis. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d) (2008). For the showing of chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2008). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., under the criteria of DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 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 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. 38 C.F.R. § 3.304(f) (2008). When the evidence does not establish that a Veteran is a combat Veteran, her assertions of service stressors are not sufficient to establish the occurrence of such events. Rather, the alleged service stressors must be established by official service record or other credible supporting evidence. 38 C.F.R. § 3.304(f); Pentecost v. Principi, 16 Vet. App. 124 (2002); Fossie v. West, 12 Vet. App. 1 (1998); Cohen v. Brown, 10 Vet. App. 128 (1997); Doran v. Brown, 6 Vet. App. 283 (1994). It is the Board's principal responsibility to assess the credibility, and therefore the probative value of proffered evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995); Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000); Madden v. Gober, 125 F. 3d 1477 (Fed. Cir. 1997); Guimond v. Brown, 6 Vet. App. 69 (1993); Hensley v. Brown, 5 Vet. App. 155 (1993). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). The Veteran served on active duty from August 1972 to August 1975, and from September 1977 to September 1994. His service included a temporary duty assignment to Saudi Arabia from April 1991 to June 1991 in support of Operation Provide Comfort, and that the Veteran's unit was part of a joint task force that performed a security mission. Several incidents were noted in May 1991 and June 1991, where the Kurds conducted demonstrations and other acts of violence. The Veteran claims that his most traumatic experience was the riot that took place when the troops had to stop the Kurdish from getting through their blockades. The Veteran's service personnel records reveal that he received awards and medals consistent with service in support of the Vietnam and Persian Gulf Wars. However, those awards are not indicative of participation in combat. Thus, his reported PTSD stressors must be verified in order for service connection for PTSD to be warranted. The Veteran's service medical records are negative for evidence of any chronic psychiatric disability during service. His psychiatric evaluation at separation from service was normal. Post-service treatment records show that the Veteran was initially diagnosed with PTSD in October 2005. At that time, the Veteran reported in-service PTSD stressors involving the riot that occurred when the Veteran and other troops had to stop the Kurdish from getting though their blockades, riots in Northern Iraq with the 709th Military Police Battalion and the 284th Military Police Company from April 27, 1991, to June 28, 1991, as well as other riot control missions. He was diagnosed with PTSD in accordance with DSM-IV. Subsequent records show that the Veteran consistently reported a stressor involving an incident when the Veteran and his brigade had to stop the Kurdish from getting through their blockade, in addition to other stressors that occurred while he served with the 709th Military Police Battalion and the 284th Military Police Company. These records also show that he has been receiving regular treatment for PTSD. Having determined that the Veteran has a valid PTSD diagnosis, the remaining question before the Board is whether the Veteran's PTSD diagnosis is based upon a verified stressor. In support of his claim, the Veteran submitted an undated statement written by a fellow serviceman which corroborates the stresses of serving in Northern Iraq. The Board has determined that statement is credible and is persuasive corroboration of the Veteran's account of experiences while serving in Northern Iraq. The Veteran's service personnel records include a temporary duty assignment to Saudi Arabia from April 27, 1991, to June 28, 1991, that additionally verifies the Veteran's reports of stressors. Furthermore, Defense Personnel Records verified the activities of the 284th Military Police Company to include deployment as part of Joint Task Force Bravo during Operation Provide Comfort and that unit's performance of a security mission. Additional historical information obtained showed that several incidents occurred during May 1991 and June 1991, in which the Kurds conducted demonstrations and other acts of violence. A history submitted by the 3rd Battalion, 325th Infantry documents the unit's involvement in Operation Provide Comfort as part of the Joint Task Force Bravo. Those service personnel records, Defense Personnel Records and the statement written by the Veteran's fellow serviceman which corroborate his account of an incident when the Veteran's brigade had to stop the Kurdish from getting though the blockade are sufficient to verify the Veteran's reported stressors. Because the Veteran's PTSD diagnosis was based, at least in part, on a corroborated stressor, the Board finds that it is at least as likely as not that the evidence of record demonstrates that the Veteran's PTSD is due to a verified stressor event during his service. Therefore, the Board finds that service connection for PTSD is warranted. All reasonable doubt has been resolved in favor of the claimant in making this decision. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist the Appellant Upon receipt of a complete or substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. This notice requires VA to indicate which portion of that information and evidence is to be provided by the claimant and which portion VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. § 3.159 (2006). The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the RO sent correspondence in October 2005 and August 2006; a rating decision in July 2006; and a statement of the case in December 2007. These documents discussed specific evidence, the particular legal requirements applicable to the claim, the evidence considered, the pertinent laws and regulations, and the reasons for the decisions. VA made all efforts to notify and to assist the appellant with regard to the evidence obtained, the evidence needed, the responsibilities of the parties in obtaining the evidence, and the general notice of the need for any evidence in the appellant's possession. The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. There has been no prejudice to the appellant, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the final adjudications in the November 2008 supplemental statement of the case. In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has also obtained a medical examination in relation to this claim. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. ORDER Service connection for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ L. M. Barnard Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs