Citation Nr: 0947493 Decision Date: 12/15/09 Archive Date: 12/24/09 DOCKET NO. 04-33 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The Veteran had active service from August 1966 to August 1968, with service in the Republic of Vietnam from April 1967 to April 1968. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2003 by the Department of Veterans Affairs (VA) St. Petersburg, Florida, Regional Office (RO). The Veteran's claim was previously before the Board in August 2007 and was remanded at that time for additional evidentiary development. The requested development was completed and the Veteran's claim is before the Board for final appellate consideration. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran was engaged in combat. 2. The Veteran has PTSD that is linked by competent evidence to a combat stressor. CONCLUSION OF LAW Posttraumatic stress disorder was incurred in service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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); (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) (2009); see also Cohen v. Brown, 10 Vet. App. 128, 138 (1997). The diagnosis of a mental disorder must conform to the Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and be supported by the findings of a medical examiner. See 38 C.F.R. § 4.125(a) (2009). In adjudicating a claim of 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) (2008); 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 The Veteran's record of assignments indicates that while he was stationed in the Republic of Vietnam from April 1967 to April 1968, he had a principal duty as a helicopter mechanic, and later as a crew chief. In April 1967, he was a helicopter mechanic assigned to a unit designated as "151st Trans Det USARPAC - Vietnam," and in September 1967, he was a crew chief assigned to a unit designated as "71st AVN Co APO 937 4 US ARPA C - Vietnam." The Veteran indicated in a statement to the RO dated March 2002 that upon arriving in Vietnam, his primary responsibilities involved serving as an aircraft mechanic, engineer, and crewman as well as a "door gunner" on helicopters. The Veteran provided evidence of three in-service stressors in support of his service connection claim: (1) an incident in February or April 1968 in which the Veteran was stationed on a medevac helicopter and was required to load body parts of both United States and Republic of Vietnam soldiers into burlap bags after they were killed by an exploding mine in an area northwest of Chu Lai; (2) an incident near Chu Lai between late 1967 and 1968 in which the Veteran served as a helicopter gunner and recorded his "first confirmed kill" while providing air support to ground troops; (3) an incident near Chu Lai between late 1967 and 1968 in which the Veteran had transported a Vietnamese woman with "gangrene of her sexual organs" to the hospital who later died. See Veteran's statements dated June 2002 and November 2007. Service treatment records (STRs) associated with the claims file are completely negative for a diagnosis of or treatment for any psychiatric abnormalities, to include PTSD. The Board notes, however, that the Veteran reported to the 14th Aviation Battalion dispensary on more than one occasion from July 1967 to February 1968 for treatment of a variety of physical complaints. A command history of the 14th Aviation Battalion revealed that it included the 71st Aviation Company, of which the Veteran was a member. The 71st Aviation Company is also identified as having provided combat support, typically in Chu Lai, from April 1967 to October 1971. The Veteran reported to Forest Hills Health Center in February 2001. He indicated having a history of anxiety for which he was prescribed Xanax. Following a physical examination, the Veteran was diagnosed as having anxiety disorder with stress factors. The Veteran presented to a VA mental health clinic in February 2003 for a psychiatric consultation. The examiner noted that the Veteran served as a door gunner and crew chief in the Army. The Veteran reported a variety of subjective symptoms, including high levels of agitation, intrusive thoughts, nightmares, easy frustration, and aggressive behavior. Following a mental status examination, the examiner diagnosed the Veteran as having chronic, severe PTSD. The examiner further opined that it was "more likely than not" that the Veteran's PTSD stemmed from his "combat stressors" in Vietnam. The Veteran sought additional VA care in October 2003 following a slip-and-fall accident. The Board notes that depression and anxiety disorders were listed, among other conditions, on a list of "active problems" at that time. The Veteran was also afforded a VA Compensation and Pension (C&P) examination in connection with the current claim in July 2008. The examiner reviewed the Veteran's claims file and medical records at that time, and noted the Veteran's past combat service in the Army as a helicopter mechanic, door gunner, and crew chief. The Veteran reported subjective symptoms of depressed mood several days per week, difficulty initiating tasks, procrastination, irritability with social withdrawal, suicidal ideation, and periodic anxiety in social situations or crowded places. Following a mental status examination, the examiner diagnosed the Veteran as having chronic PTSD and depressive disorder, not otherwise specified. The examiner also opined that the Veteran's currently diagnosed PTSD was "at least as likely as not" caused by the Veteran's military service, and in particular, by his experience providing aerial support to combat ground forces as a door gunner and helicopter crew chief in Vietnam. 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, the Veteran's record of assignments indicated that he served as a crew chief with the 71st Aviation Company in Vietnam from September 1967 to April 1968. As noted above, the 71st Aviation Company was attached to the 14th Aviation Combat Battalion and was charged with, among other things, providing aerial support to ground troops in and around Chu Lai. Thus, resolving all doubt in the Veteran's favor, the Board finds that the Veteran was engaged in combat with the enemy. Moreover, the Board finds that the Veteran's claimed combat stressors - (1) that in February or April 1968, he was stationed on a medevac helicopter and was required to load body parts of both United States and Republic of Vietnam soldiers into burlap bags after they were killed by an exploding mine in an area northwest of Chu Lai; and (2) that the Veteran served as a helicopter gunner and recorded his "first confirmed kill" while providing air support to ground troops in an incident near Chu Lai between late 1967 and 1968 - are consistent with the circumstances, conditions, or hardships of the Veteran's service. See 38 C.F.R. § 3.304(d); see also 38 U.S.C.A. § 1154(b). Additionally, the Veteran was diagnosed as having PTSD in VA records dated February 2003 and July 2008. Both examiners linked the currently diagnosed PTSD to the Veteran's combat experiences in Vietnam. The July 2008 VA C&P examiner, in particular, linked the Veteran's currently diagnosed PTSD to his experiences providing aerial support to combat ground forces as a door gunner and helicopter crew chief in Vietnam. Accordingly, the Board finds that the criteria of entitlement to service connection for PTSD have been met and the Veteran's claim is granted. In reaching these conclusions, the Board has also applied the benefit-of-the-doubt doctrine. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). 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 claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). 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 posttraumatic stress disorder is granted, subject to the law and regulations governing payment of monetary benefits. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs