Citation Nr: 1004589 Decision Date: 01/29/10 Archive Date: 02/16/10 DOCKET NO. 07-06 299A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to nonservice-connected pension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1967 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2008, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, and it now returns to the Board for appellate review. The Board notes that the Veteran had also filed a timely appeal with the denial of service connection for bilateral hearing loss. However, while the appeal was in REMAND status, this claim was granted by the AOJ. Therefore, the claim for service connection for bilateral hearing loss is no longer before the Board. The Veteran testified at a personal hearing before the undersigned, sitting at the RO in October 2007. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, his PTSD is the result of a verified in-service stressor. 2. The Veteran is unable to follow a substantially gainful occupation due to impairment that is reasonably certain to continue throughout his life. CONCLUSIONS OF LAW 1. PTSD was incurred in the Veteran's active duty military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304(f) (2009). 2. The criteria for basic eligibility for non-service- connected VA pension benefits have been met. 38 U.S.C.A. §§ 1502, 1521 (West 2002); 38 C.F.R. §§ 3.2, 3.3 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As the Board's decision herein to grant service connection for PTSD and entitlement to nonservice-connected pension is a full grant of the benefits sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002) and the implementing regulations. I. PTSD Service connection may be granted for disability arising from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 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). Service connection for PTSD requires medical evidence of a current diagnosis of PTSD, credible supporting evidence that the claimed in-service stressor(s) occurred, and a link between the current diagnosis and the claimed in-service stressor(s). 38 C.F.R. § 3.304(f). See also Cohen v. Brown, 10 Vet. App. 128 (1997). With regard to the second PTSD element, evidence of an in- service stressor, the evidence necessary to establish the claimed stressor varies depending on whether it can be determined that the Veteran "engaged in combat with the enemy." See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. 3.304(d). If it is determined through military citation or other supporting evidence that a veteran engaged in combat with the enemy, and the claimed stressors are related to combat, the Veteran's lay testimony regarding the reported stressors must be accepted as conclusive evidence as to their actual occurrence. No further development or corroborative evidence will be deemed necessary. See 38 C.F.R. § 3.304(f). Where a determination is made that the Veteran did not "engage in combat with the enemy," or the claimed stressor is not related to combat, the Veteran's lay testimony alone will not be enough to establish the occurrence of the alleged stressor. See Moreau v. Brown, 9 Vet. App. 389, 395 (1996); Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). In such cases, the record must contain service records or other evidence in support of the occurrence of the claimed stressor. See West (Carlton) v. Brown, 7 Vet. App. 70, 76 (1994); Zarycki v. Brown, 6 Vet. App. 91, 98 (1993). Once independent verification of the stressor event has been submitted, the Veteran's personal exposure to the event may be implied by the evidence of record. A veteran need not substantiate his actual presence during the stressor event; the fact that the Veteran was assigned to and stationed with a unit that was present while such an event occurred strongly suggests that he was, in fact, exposed to the stressor event. See Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). The Board observes that the Veteran's service personnel records are negative for any decoration or award signifying combat and that his military occupational specialty (MOS) was that of intelligence analyst with Company B, 5th Special Forces Group (Airborne). There is no indication that he engaged in combat with the enemy. Therefore, as indicated above, the Veteran's lay testimony alone is not enough to establish the occurrence of the alleged stressor, and the evidence must contain independent statements or records supporting such occurrence. See Morneau, supra; Dizoglio, supra; West (Carlton), supra; and Zarycki, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service personnel records reflect that he served in the Republic of Vietnam from July 1969 to August 1970. The Veteran contends that he suffers from PTSD as a result of combat experience in Vietnam. The claimed combat experience includes participation in "sniffer" missions between March 15, 1970 and April 15, 1970 around Dak Pek, Ben Het, and Dak Seang and having his unit's camps at Dak Pek and Ben Het attacked and overrun in January 1970 or February 1970. Service personnel records reflect that the Veteran was an intelligence analyst with Company B, 5th Special Forces Group (Airborne). The U.S. Army and Joint Services Records Research Center (JSRRC) was requested to search unit records for confirmation of these events. In response, JSRRC stated that they reviewed the Operational Report - Lessons Learned (OR-LL) for the 5th Special Forces Group (Airborne). Of the information found by JSRRC and provided to VA, the following is relevant to the Veteran's claimed stressors: * From April 12, 1970 to about April 18, 1970, Dak Pek received a mortar/rocket and sapper attack and during the first two days of the attack, three of the five main hills at Dak Pek were taken by the enemy. * In April 1970, Ben Het received numerous barrages of 82mm and 75mm recoilless rifle fire. The Board is aware that the 5th Special Forces Group was a large unit with groups stationed throughout Vietnam and that there is no documentation that the Veteran was stationed at either Dak Pek or Ben Hut. Nevertheless, in light of the fact that the attacks described by JSRRC occurred during a time period in which the Veteran purports to have been at Dak Pek and Ben Hut and are consistent with his description of attacks at those camps, if at a different time, the Board affords the Veteran the benefit of the doubt and determines that he has a verified in-service stressor. Additionally, the Board finds that the Veteran has a current diagnosis of PTSD. In this regard, the Board notes that VA treatment records and the June 2009 VA examination report show that the Veteran has been diagnosed with PTSD, major depressive disorder, cannabis dependence, alcohol dependence, and polysubstance abuse. The latter three have been noted to be in remission. Further, the June 2009 VA examiner stated that the Veteran meets the DSM-IV criteria for a diagnosis of PTSD. 38 C.F.R. § 4.125. Finally, he opined that, the Veteran's PTSD is most likely caused by or a result of his cited military combat stressors and experiences while serving in Vietnam. The record does not offer contradictory evidence as to the etiology of the Veteran's PTSD; therefore, the Board concludes that the Veteran has a diagnosis of PTSD that is a result of a verified in-service stressor. Accordingly, service connection for PTSD is granted. II. Nonservice connected pension Nonservice-connected pension benefits are payable to a veteran who served for 90 days or more during a period of war, which is not in dispute here, and who is permanently and totally disabled due to nonservice-connected disabilities that are not the result of his or her own willful misconduct. 38 U.S.C.A. § 1521 (West 2002); see also Dilles v. Brown, 5 Vet. App. 88, 89-90 (1993). If a veteran's combined level of disability is less than 100 percent, he or she must be unemployable by reason of disability. 38 C.F.R. §§ 3.321, 3.340, 3.342 and Part 4 (2009); see also Brown (Clem) v. Derwinski, 2 Vet. App. 444, 446 (1992). Disability evaluations are determined by the application of the VA schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 3.321(a), Part 4 (2009). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2009). In addition to assignment of appropriate rating evaluations for each disability, in pension cases, VA has the obligation to apply both the "average person" and "unemployability" tests, and, if the benefit may not be awarded under either of these tests, to make a determination as to whether there is entitlement to non service-connected disability pension on an extraschedular basis. See Talley v. Derwinski, 2 Vet. App. 282 (1992); Roberts v. Derwinski, 2 Vet. App. 387 (1992); and Brown v. Derwinski, 2 Vet. App. 444 (1992). In the average person (or objective) test, total disability will be found to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation, provided that the impairment is reasonably certain to continue throughout the life of the disabled person. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.15. Under the unemployability (or subjective) test, where the Veteran's disabilities meet the percentage requirements of 38 C.F.R. § 4.16, and they are shown to be permanent in nature, a determination should be made whether such disabilities render him or her incapable of substantially gainful employment. If so, the criteria for a grant of nonservice- connected pension are met. To meet the percentage requirements of 38 C.F.R. § 4.16, the Veteran must suffer from one disability ratable at 60 percent or more, or two or more disabilities where one of the disabilities is ratable at 40 percent or more, and the combined rating of all disabilities is 70 percent or more. In this case, the record does not currently establish that the Veteran meets these eligibility requirements as he has a combined rating of 10 percent. The Board is aware that the rating assigned for PTSD, which is herein service-connected, would impact the question of whether the Veteran meets the unemployability test; however, as discussed below, the Board finds that the Veteran is eligible for nonservice-connected pension under the average person test. Thus, the rating assigned for his service-connected PTSD is not material to this decision. The Veteran is currently 60 years of age, and he has had 3 years of college education. A June 2003 private treatment record indicates that the Veteran was a self-employed stockbroker. In his May 2005 Income-Net Worth and Employment Statement, he indicated that his last employment had been in sales from November 2003 to July 2004. He further indicated that had attempted and failed to obtain employment in home repair in February 2005. At his hearing, he testified that he had not had any long-term gainful employment since 2001, and that his most recent work had been temporary part-time work, such as telephone sales. A January 2006 VA treatment record indicates that the Veteran had been unable to maintain a full-time job, mostly due to his mental problem. However, it is not clear that this statement is an opinion of the provider or a restatement of the Veteran's own statements. Nevertheless, the Board determines that the June 2009 VA examination report provides objective findings as to the impact of the Veteran's PTSD on his employability. In this regard, the Board observes that the VA examiner stated that the Veteran's PTSD and co-occurring symptoms cause serious impairment in both social and work environments and that they result in the Veteran's limitations in performing occupational duties, to include obtaining and retaining gainful employment. Finally, the examiner indicated that improvement of the Veteran's disability was unlikely to occur and cannot be realistically expected. The Board recognizes that VA benefits are generally not payable for disability resulting from willful misconduct, which includes alcohol and substance abuse disorders. See 38 C.F.R. § 3.3 (2009). The Veteran's medical history includes treatment for both alcohol and substance abuse. However, the Board notes that the record reflects that the Veteran had not engaged in polysubstance abuse since 1982 and that his alcohol and cannabis abuse were in remission. Additionally, the June 2009 VA examiner does not indicate that the Veteran's substance abuse disorders were contemplated as a cause of his occupational difficulties or are considered "co-occurring symptoms" of his PTSD. Thus, the Board concludes that the competent evidence establishes that the Veteran's PTSD renders him unable to follow a substantially gainful occupation due to impairment that is reasonably certain to continue throughout his life. 38 U.S.C.A. § 1502(a)(1); 38 C.F.R. § 4.15. Accordingly, entitlement to nonservice-connected pension is granted. ORDER Service connection for PTSD is granted. Entitlement to nonservice-connected pension is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs