Citation Nr: 1007100 Decision Date: 02/25/10 Archive Date: 03/05/10 DOCKET NO. 01-08 445 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from February 1966 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) from a March 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that declined to reopen the Veteran's claim for service connection for PTSD. An October 2002 Board decision reopened the Veteran's claim for service connection for PTSD. The Board remanded the claim for additional development in November 2008. As the requested development has been completed, no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT The medical evidence shows that the Veteran has been diagnosed with a psychiatric disorder, to include PTSD, which is medically attributed to a verified stressor he experienced during his service in Vietnam. CONCLUSION OF LAW A psychiatric disorder, to include PTSD, was incurred due to active service. 38 U.S.C.A. §§ 1110, 5107(b) (West 2009); 38 C.F.R. § 3.304(f) (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran has alleged that during his period of service in Vietnam, his base was located near a prisoner of war camp that contained enemy prisoners. He reported that his base was attacked, the prisoners were released, and the base was overrun by the enemy, with fighting and casualties. The Veteran also asserted that during patrol duties a week after the incident at base, he accidentally killed a woman and child with a flamethrower. Service connection may be awarded for a chronic condition when (1) a chronic disease manifests itself and is identified as such in service (or within the presumption period under 38 C.F.R. § 3.307) and the appellant presently has the same condition; or (2) a disease manifests itself during service (or during the presumptive period), but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the appellant's present condition. 38 U.S.C.A. §§ 1110, (West 2002); 38 C.F.R. § 3.303(b) (2009); Savage v Gober, 10 Vet. App. 488 (1997). To grant service connection, it is required that the evidence shows the existence of a current disability, an in-service disease or injury, and a link between the disability and the in-service disease or injury. Watson v. Brown, 4 Vet. App. 309 (1993). A Veteran seeking disability benefits must establish the existence of a disability and a connection between the Veteran's service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection connotes many factors, but basically, it means that the facts, as shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service. A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease in service. Pond v. West, 12 Vet. App. 341 (1999); Watson v. Brown, 4 Vet. App. 309 (1993). Eligibility for service connection for PTSD requires that three elements must be present according to VA regulations: (1) medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) credible supporting evidence that the claimed in-service stressor actually occurred; and (3) a link, established by medical evidence, between the current symptoms and the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2009); Cohen v. Brown, 10 Vet. App. 128 (1997). If the evidence establishes that the appellant 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 appellant's service, the appellant's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2009); 38 U.S.C.A. § 1154(b) (West 2002). If the claimed stressor is related to combat, service department evidence that the appellant engaged in combat or that the appellant was awarded the Purple Heart, Combat Infantryman Badge, or similar combat citation will be accepted, in the absence of evidence to the contrary, as conclusive evidence of the claimed in-service stressor. 38 C.F.R. § 3.304 (2009). For the purposes of establishing service connection, a stressor is an event experienced by the appellant during active service that is outside the range of normal human experience and that would be markedly disturbing to almost anyone. Examples of such events are experiencing an immediate threat to one's life, or witnessing another person being seriously injured or killed. It is the distressing event, rather than the mere presence in a combat zone that may constitute a valid stressor for the purposes of supporting a diagnosis of PTSD. Zarycki v. Brown, 6 Vet. App. 91 (1993); Wood v. Derwinski, 1 Vet. App. 190 (1991). The evidence necessary to establish that the claimed stressor actually occurred varies depending on whether the appellant engaged in combat with the enemy. 38 U.S.C.A. § 1154(b) (West 2002). Where it is determined, through recognized military citations or other supportive evidence, that the Veteran was engaged in combat with the enemy and the claimed stressors are related to such combat, the Veteran's lay testimony regarding claimed stressors must be accepted as conclusive as to their actual occurrence and no further development for corroborative evidence will be required, provided that the Veteran's testimony is found to be satisfactory, that is, credible, and consistent with the circumstances, conditions, or hardships of combat service. Zarycki v. Brown, 6 Vet. App. 91 (1993); 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d), (f) (2009). The Veteran served in the Republic of Vietnam from May 1967 to April 1968. According to the Veteran's service separation form, his military occupational specialty was that of personnel specialist and clerk. Awards and commendations given the Veteran include the National Defense Service Medal, the Vietnam Service Medal, the Vietnam Campaign Medal, and the Expert Badge (Rifle-M16). The Veteran's service medical records do not contain any diagnosis, treatment, findings or complaints attributable to any psychiatric disorder. VA outpatient treatment records starting in 1998 show treatment for PTSD related to the Veteran's experiences in Vietnam. In correspondence of March 2000, a VA psychiatrist opined that the Veteran suffered from PTSD caused by his experiences during his tour in the Republic of Vietnam. In January 2008, the United States Army and Joint Services Records Research Center (JSRRC) was able to verify that the Veteran was present during an enemy rocket attack on his base in October 1967. Specifically, the JSRRC determined that according to the Daily Staff Journal submitted by Headquarters, 4th Infantry Division, on October 26, 1967, Pleiku and Camp Holloway received enemy rocket attacks resulting in slight casualties. Morning reports submitted by Headquarters, 45th General Support Group, during that time period show that the main base camp location for the group was Pleiku, Vietnam. The morning reports also revealed that the Veteran was assigned to the Headquarters Company, 45th General Support Group, on October 21, 1967. However, JSRRC was unable to verify the incident where the Veteran accidentally killed a woman and child. On VA examination in July 2008, the examiner diagnosed the Veteran with PTSD based on his report of accidentally killing a woman and child in Vietnam, but the examiner did not state whether or not the verified enemy rocket attack had caused or contributed to the Veteran's PTSD. On VA examination in January 2009, the Veteran described various in-service stressors, to include exposure to rocket attacks, enemy attacks, and accidentally killing a woman and child with a flamethrower. The examiner diagnosed PTSD and opined that it was at least a likely as not that the verified in-service stressor of exposure to a rocket attack either caused or contributed to the Veteran's PTSD. The Board finds that there are numerous diagnoses of PTSD of record, which were seconded by VA medical expert opinions in July 2008, and January 2009. The evidence shows that the Veteran was present during an enemy rocket attack on his base in October 1967, thus showing that the Veteran engaged in combat with the enemy during his service. Therefore, the Veteran's claimed stressor of an enemy rocket attack is considered verified. Although there is no official corroboration that the Veteran was in the immediate vicinity of those injured or the attacks, it is now well settled that a claimant 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 exposed to the stressor event. Pentecost v. Principi, 16 Vet. App. 124 (2002); Suozzi v. Brown, 10 Vet. App. 307 (1997). After carefully considering the matter the Board believes that there is sufficient evidence in the file to confirm the Veteran's claimed stressor. The Veteran was part of a unit which was subjected to a confirmed rocket attack. His exact location need not be proven. Furthermore, the confirmed in- service stressor has been linked to the Veteran's currently diagnosed PTSD in the January 2009 VA medical opinion. After reviewing the evidence, the Board finds that there it is at least as likely as not that the Veteran's current PTSD is related to his active service, based on the medical evidence presented in this case, which establishes that it is at least as likely as not that some portion of the Veteran's PTSD is related to his service, and specifically to being exposed to an enemy rocket attack on his base during his service in Vietnam in October 1967. 38 C.F.R. § 3.303(d) (2009). Therefore, service connection for a psychiatric disorder, to include PTSD, is granted. The Board has resolved all reasonable doubt in favor of the Veteran in making this decision. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a psychiatric disorder, to include PTSD, is granted. ____________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs