Citation Nr: 1003585 Decision Date: 01/25/10 Archive Date: 02/01/10 DOCKET NO. 05-01 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. J. Drucker, Counsel INTRODUCTION The Veteran had active duty from March 1969 to October 1970. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In August 2006, the Board remanded the Veteran's case to the RO to comply with his request to testify during a personal hearing. In June 2007, the Veteran, sitting at the RO, testified during a hearing conducted via video conference, with the undersigned Veterans Law Judge sitting at the Board's main office in Washington, D.C. A transcript of the hearing is of record. In August 2007, the Board reopened his previously denied claim and remanded it to the RO for further development. In June 2008, the Board again remanded the Veteran's case to the RO for further development. Furthermore, the Board notes that the United States Court of Appeals for Veterans Claims (Court) recently held that claims for service connection for PTSD encompass claims for service connection for all psychiatric disabilities. Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). Thus, in light of Clemons v. Shinseki, the Board has recharacterizied the Veteran's claim as a claim for service connection for an acquired psychiatric disorder, to include PTSD, as set forth on the title page. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the objective and competent medical evidence of record demonstrates that he has an acquired psychiatric disorder, variously diagnosed as PTSD and a major depressive disorder, that cannot be dissociated from his active military service. CONCLUSION OF LAW Resolving doubt in the Veteran's favor, an acquired psychiatric disorder, variously diagnosed as PTSD and a major depressive disorder, was incurred during active military service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The VCAA substantially amended the provisions of Chapter 51 of Title 38 of the United States Code, concerning the notice and assistance to be afforded to claimants in substantiating their claims. VCAA § 3(a), 114 Stat. 2096, 2096-97 (2000) (now codified as amended at 38 U.S.C.A. § 5103 (West 2002 & Supp. 2009)). In view of the favorable disposition of this appeal, discussed below, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertaining to his claim, under the VCAA. Also, during the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (hereinafter referred to as "the Court") issued a decision in the consolidated appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), that held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) applied to all five elements of a service connection claim. Id. In an August 2006 letter, the RO provided the Veteran with notice consistent with the Court's holding in Dingess. Moreover, in the instant case, although the Veteran's service connection claim is being granted, no disability rating or effective date will be assigned and, as set forth below, there can be no possibility of prejudice to the Veteran. As set forth herein, no additional notice or development is indicated in the Veteran's claim. The RO will again provide appropriate notice as to the rating criteria and effective date to be assigned prior to the making of a decision on this matter. It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance in the 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 to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court held that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran argues that he has a psychiatric disability, primarily as a result of traumatic events he witnessed in service. Therefore, he maintains that service connection is warranted for a psychiatric disability, including PTSD. After carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the evidence is in equipoise. Accordingly, giving the Veteran the benefit of the doubt, the appeal will be granted. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Psychoses, if manifest to a degree of 10 percent within one year after separation from active duty, may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2009). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), i.e., a diagnosis that conforms to the criteria set forth in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM -IV); a link, established by medical evidence, between the current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor actually occurred. 38 C.F.R. § 3.304(f). 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 conditions or hardships of the Veteran's service, the Veteran's lay testimony alone may establish the occurrence of the in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002 and Supp. 2009). Where a current diagnosis of PTSD exists, the sufficiency of the claimed in-service stressor is presumed. Cohen v. Brown, 10 Vet. App. 128, 144 (1997). Nevertheless, credible evidence that the claimed in- service stressor actually occurred is also required. 38 C.F.R. § 3.304(f). See Anglin v. West, 11 Vet. App. 361, 367 (1998); Gaines v. West, 11 Vet. App. 353, 357 (1998), Cohen v. Brown, 10 Vet. App. at 138; Suozzi v. Brown, 10 Vet. App. 307 (1997). As noted above, the Court recently held that, although a claimant may identify a particular mental condition on the claims form accompanying his application for VA benefits, the scope of the claim cannot be limited only to the condition stated, "but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant's description of the claim; the symptoms the claimant describes; and the information the claimant submits or that VA obtains in support of the claim." See Clemons v. Shinseki, 23 Vet. App. 1, 5-6. The Veteran asserts that he has an acquired psychiatric disorder, including PTSD, due to his military service. He has variously maintained that he volunteered as a door gunner during his time in Vietnam with the First Infantry Division (the "Big Red One"), made helicopter flights to determine if an area was "hot" or not and, thus, evidently exposed him to rocket and mortar fire and the death of his comrades and others. In his June 2004 PTSD questionnaire, he indicated that he flew his third mission with lots of enemy killed in or near Chu Lai, while assigned to the 116th Avn. Co. (ALST Hel). In February 2004, the Veteran submitted a copy of an envelope addressed to his mother that includes a return address that places him with the 116th Aviation Company. Amended to his letter to his mother, in writing purported to be the Veteran's, but somewhat different from that in the letter, is a note that he made his third flight that day. Also submitted were copies of photographs of dead bodies purportedly taken during June and July 1970 in Chu Lai. In a July 2004 written statement, the Veteran said that he was unable to recall the names of soldiers he knew who were killed. He also stated that, although he had no door gunner experience, from March to August 1970, he flew several missions a week, and pointed to his training on a helicopter at Fort Eustis, Virginia. He submitted copies of photographs of dead bodies purportedly taken in Vietnam, and a copy of a picture of helicopters that allegedly showed the Veteran on "our mission" to clear and guard the area where they set down although he did not recall when it was taken. He testified that he was stationed in Chu Lai with the 116th Assault Helicopter Company and subsequently went to Da Nang, from which he returned home. In an August 2009 signed statement, the Veteran's wife said that he was not a door gunner with the Big Red One (the First Infantry Division) at Chu Lai but, when the Big Red One departed, he voluntarily transferred to the 1st Aviation Helicopter Assault Group and volunteered as a door gunner. She said he was at Chu Lai for about six months. The Veteran's wife reported that in July 2009, VA hospitalized the Veteran again for treatment of PTSD and severe depression. Service records indicate that the Veteran served in the Republic of Vietnam from October 1969 to October 1970 and his military occupational specialty was air frame repairman for which he received training in 1969. His service personnel records indicate that, from October 1969 to March 1970, the Veteran was assigned to the 701st Maintenance Battalion, that until October 1970, he was assigned to the 116th Aviation Company (Aslt Hel) and that, in August 1970, he participated in an "unnamed campaign". His awards and decorations include the National Defense Service Medal, the Vietnam Service Medal, the Republic of Vietnam Campaign Medal, and the SPS M-16 (marksmen proficiency) badge, and two overseas bars. Records evidently received in June 2004 indicate that the 116th AVN CO ASLT HELCPTER was located in Cu Chi in February, July, March, and July 1970. In a June 2009 response to the RO's inquiry, the U.S. Army and Joint Services Records Research Center (JSRRC) confirmed that Cu Chi was the main base camp for the 116th Avn Co. that was attached to the 212 Avn. Bn. and that, in July 1970, it was moved to its new base camp at Chu Lai. It was further confirmed that Chu Lai was the main base camp for the 116th Avn. Co. from July to October 1970 and that the Chu Lai Air base received rocket fire in two separate incidents in September 1970. Additionally, a review of the unit's history revealed that there were two casualties, in June and August 1970. An undated record completed by RO personnel, evidently after review of the June 2009 JSRRC response, is to the effect it was confirmed that the Veteran was subjected to rocket and mortar attacks. In the July 2009 supplemental statement of the case, the RO noted verification of a credible stressor (the Veteran's presence at Chu Lai when it was attacked) but that this was not the stressor he claimed. However, as set forth below, the Veteran repeatedly told treating physicians of his combat-related nightmares and hallucinations upon which the medical specialists evidently based the diagnoses of PTSD. Thus, the Board has no reason to contradict the RO's finding of the Veteran's exposure to mortar and rocket fire in service, or question the Veteran's contentions of experiencing a stressful event in service. The remaining question presented is whether a stressor such as experienced by the Veteran is clinically considered to be of sufficient severity to warrant a valid diagnosis of PTSD, consistent with the diagnostic criteria in the DSM-IV, or an acquired psychiatric disorder. The record indicates that, since 2000, private and VA physicians have rendered differing diagnoses of the Veteran's psychiatric disorder, including PTSD and organic depressive disorder (2000); anxiety and insomnia (2003); PTSD (2007); PTSD and depressive disorder not otherwise specified (NOS) (2008); and, major depression with psychotic features, PTSD, and depression/anxiety disorder (2009). The Veteran's psychiatric disorder has been treated with repeated inpatient hospitalizations, outpatient psychotherapy, antipsychotic medications and, more recently, electroconvulsive therapy. Service treatment records do not reflect complaints or diagnosis of, or treatment for, a psychiatric disorder. Post service, an October 2000 VA outpatient mental hygiene record indicates that the Veteran complained of having combat-related nightmares and flashbacks. He said that he worked on helicopters while in Vietnam and had flashbacks since he returned that worsened during the past three years. PTSD was diagnosed. Private hospital records indicate that when hospitalized in November 2000 for treatment of back pain, PTSD was among the Veteran's discharge diagnoses. In late December 2000, the Veteran was hospitalized again for treatment of "organic deliaium depressive disorder". An August 2001 VA psychiatric examination report indicates that the Veteran said that he was supposed to go to Vietnam to do sheet metal work and repair helicopters but became a door gunner. He indicated that he initially worked with the 1st Infantry and later with the 1st Aviation Group. The Veteran said that he flew into landing areas to see if they were "hot" or not, and that their helicopter was shot up on numerous occasions. After having foot surgery, he said that he returned to helicopter repair. Since returning from Vietnam, he experienced anxiety and depression and, at night, heard voices of people yelling and screaming. He gave a history of coping with his problems by using alcohol and stopped drinking in 1994 when he sought VA treatment. He had no prior psychiatric hospitalizations. The examiner noted that VA outpatient records reflected the Veteran's diagnosis of, and treatment for, PTSD. Upon clinical examination, the diagnosis was PTSD. While, in March 2002, the Veteran evidently sought disability benefits from the Social Security Administration (SSA) based upon a psychiatric disorder, records obtained from the SSA show that, in June 2002, he was found totally disabled by SSA due to a back disorder. When hospitalized by VA in December 2007, the Veteran reported having daily flashbacks of those he killed in Vietnam and hearing their screams. The discharge diagnoses at that time were PTSD and depression, NOS. During 2008 and 2009, the Veteran was repeatedly hospitalized for treatment of symtoms associated with PTSD and with a major depressive disorder that some physicians considered due to PTSD. At each admission, the Veteran described having combat-related nightmares and hallucinations. The Veteran was privately hospitalized during May and June 2008, when he reported increased symtoms of PTSD, with flashbacks and hallucinations and visions of enemy snipers. Major depression with psychotic features and PTSD were diagnosed. According to a March 2009 VA medical record, the Veteran was hospitalized nine times during the past year for treatment of problems associated with depression and suicidal ideation. During a July 2009 VA hospitalization, it was noted that his major medical problem was major depressive disorder related to PTSD and evidenced by increased nightmares and depression. As to whether the Veteran has PTSD related to active service, the evidence is clearly in equipoise. The Veteran maintains that he was a door gunner in Vietnam, to which he attributes his PTSD and, while this could not be verified, the service department did confirm his exposure to rocket and mortar fire in Chu Lai. Furthermore, both private and VA physicians who treated the Veteran appear to have associated his psychiatric disorder with his reported stressful events in service. Thus these medical opinions have probative value, and after reviewing the record, the Board finds that they are equally plausible and equally probative. Hence, the Board finds that the evidence is in equipoise as to whether the Veteran has an acquired psychiatric disorder that cannot be dissociated from active service. Accordingly, pursuant to 38 U.S.C.A. § 5107, entitlement to service connection for an acquired psychiatric disorder, variously diagnosed as PTSD and a major depressive disorder, is granted. ORDER Service connection for an acquired psychiatric disorder, variously diagnosed as PTSD major depressive disorder, is granted. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs