Citation Nr: 1007443 Decision Date: 03/01/10 Archive Date: 03/11/10 DOCKET NO. 08-12 482 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. Conner, Counsel INTRODUCTION The appellant served on active duty from August 1966 to August 1968. This matter came to the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The appellant's claim is in the jurisdiction of the RO in New York, New York. In December 2009, he testified at a Board hearing at the New York RO. FINDINGS OF FACT 1. The appellant's account of an in-service stressor has been corroborated by the evidence of record. 2. Medical evidence shows that the appellant currently has PTSD as a result of his corroborated in-service stressor. CONCLUSION OF LAW PTSD was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Under the VCAA, VA is required to advise a claimant of the information and evidence not of record that is necessary to substantiate a claim. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2009). VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating that claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). In light of the favorable decision below, the Board finds that any deficiency in VA's VCAA notice or development actions is harmless error. Background The appellant's service treatment records are negative for complaints or findings of a psychiatric disability, including PTSD. At his August 1968 military separation medical examination, psychiatric evaluation was normal. The appellant's service personnel records show that he served in Vietnam from August 1967 to August 1968 with HHC, 15th Engineer Battalion, 9th Infantry Division. His military occupational speciality was Turret Artillery Repairman. He is the recipient of the Vietnam Service Medal, the National Defense Service Medal, and a Vietnam Campaign Medal. His listed campaigns include the Vietnam Counter Offensive. In June 2006, the appellant submitted a claim of service connection for PTSD. In support of his claim, he submitted a May 2006 consultation report from a private psychologist. It was noted that the appellant had presented as highly anxious, depressed and disturbed. He made it clear that he did not like to talk about his problems, although he described traumatic experiences he encountered during his Vietnam service. The psychologist indicated that the appellant had presented emotional symptoms during the interview which were consistent with PTSD. The appellant was afforded a VA psychiatric examination in October 2006, at which he reported that for the past two years, he had felt depressed with episodes of crying. He indicated that he had recently undergone psychiatric evaluation and had been diagnosed as having PTSD. On examination, the appellant reported that during his tour of duty in Vietnam, he had been present for the Tet Offensive. He also remembered vividly an episode in which he had seen villagers burned with Napalm. He indicated that this incident had occurred while he was building Highway 1. After examining the appellant, the examiner diagnosed the appellant as having delayed onset PTSD, related to his Vietnam experiences, including witnessing the burning of villagers. VA clinical records show that in October 2006, the appellant underwent initial intake in the psychiatric clinic for treatment of PTSD. He was diagnosed as having PTSD due to his Vietnam experiences. In a November 2006 statement, in response to the RO's request for information regarding his in-service stressors, the appellant described two stressors. The first stressor involved his experiences being trapped with his unit in the Saigon Hotel on the first night of the Tet Offensive. The second stressor involved an incident which occurred in approximately November 1967. At that time, the appellant was with his unit, attached to Company A, clearing the land for U.S. Route 1 just south of Tam Quan. He indicated that they had just cleared some buildings in a village when the villagers turned and fired on them. The appellant recalled that his unit had been accompanied by two tanks which were equipped with Napalm flames throwers. The tanks turned and sprayed the attackers. In February 2008, the RO contacted the United States Army and Joint Services Records Research Center (JSRRC) for corroboration of the appellant's second stressor. It is unclear why the RO did not request corroboration of his first stressor. In March 2008, JSRRC responded that they had reviewed the Operational Reports, Lessons Learned, for the 15th Engineer Battalion for the period from October 31, 1967, to January 31, 1968. These reports documented that the appellant's unit had supported the 9th Infantry Division with construction projects at the Bearcat Base Camp. Additionally, these reports confirmed that a flame thrower platoon in HHC remained active in security missions and search and destroy missions along with infantry forces during this period. JSRRC noted that the report for the period ending October 31, 1967, documented that the flame thrower platoon aided infantry forces in destroying three houses and had received light sniper fire. The JSRRC indicated that in order to conduct any additional research, however, they would need "the most specific date possible" as well as other units involved. At his December 2009 Board hearing, the appellant provided credible testimony regarding his in-service stressor, describing the 1967 incident in great detail. Applicable Law Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110 (West 2002). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). Service connection for PTSD requires (1) medical evidence diagnosing the condition in accordance with the 4th edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-IV); (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 stressors occurred. 38 C.F.R. § 3.304(f) (2009); Anglin v. West, 11 Vet. App. 361, 367 (1998). The evidence required to support the occurrence of an in- service stressor varies depending on whether the appellant was engaged in combat with the enemy. If the evidence establishes that a 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 such veteran's service, his lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(f) (2009). Where the record does not establish that a veteran engaged in combat with the enemy, his assertions of in-service stressors, standing alone, cannot as a matter of law provide evidence to establish an event claimed as a stressor occurred. Dizoglio v. Brown, 9 Vet. App. 163, 166 (1996). Rather, he must provide "credible supporting evidence from any source" that the event alleged as the stressor in service occurred. Cohen v. Brown, 10 Vet. App. 128, 147 (1997). The Board notes that effective October 29, 2008, VA amended its regulations regarding service connection for PTSD by eliminating the requirement for evidence corroborating the claimed in-service stressor in cases in which PTSD is diagnosed in service. See 73 Fed. Reg. 64,210 (Oct. 29, 2008); 74 Fed. Reg. 14,492 (Mar. 31, 2009). In this case, the evidence does not show, nor does the appellant contend, that PTSD was diagnosed in service. Thus, this amended provision is not for application. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107(b) (West 2002). Under that provision, 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. See also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The appellant seeks service connection for PTSD, secondary to his experiences in Vietnam. After carefully reviewing the record on appeal, the Board finds that service connection for PTSD is warranted. As noted, service connection for PTSD requires: (1) medical evidence diagnosing the condition in accordance with applicable criteria; (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 occurred. 38 C.F.R. § 3.304(f) (2009). In this case, in light of the October 2006 VA examination report and clinical records, the record contains the necessary evidence of a diagnosis of PTSD which is linked to the appellant's in-service stressors. The Board further finds that the record contains credible supporting evidence that the appellant's claimed in-service stressor occurred. In that regard, the appellant has described a 1967 incident in which his unit was attacked after clearing a village in order to construct U.S. Route 1. He reports that the flame throwing tanks which were accompanying his unit retaliated against the enemy. The record in this case includes a March 2008 report from JSRRC confirming that the appellant's unit, the 15th Engineer Battalion, 9th Infantry Division, took part in construction projects and were accompanied by a flame thrower platoon. JSRRC has further confirmed that Lesson Learned reports for the reporting period ending October 31, 1967, documented an episode in which the flame thrower platoon aided infantry forces in destroying three houses, during which time they received light sniper fire. Although the record contains no evidence confirming the appellant's actual participation in this incident, the U.S. Court of Appeals has made clear that the corroboration of an alleged stressor does not require that there be corroboration of every detail, including a veteran's personal participation. Rather, confirmation of a veteran's location in the general vicinity of the claimed stressful events is sufficient. See Suozzi v. Brown, 10 Vet. App. 307 (1997) ("The Secretary, in insisting that there be corroboration of every detail including the appellant's personal participation . . ., defines 'corroboration' far too narrowly."); see also Pentecost v. Principi, 16 Vet. App. 124 (2002) ("Although the unit records do not specifically state that the veteran was present during the rocket attacks, the fact that he was stationed with a unit that was present while such attacks occurred would strongly suggest that he was, in fact, exposed to the attacks."). In this case, the service department records confirm that the appellant was attached to the 15th Engineer Battalion, 9th Infantry Division, from August 1967 to August 1968. Moreover, his testimony regarding his stressor is credible and the details of such stressor have been consistent throughout the course of this appeal. The incident is further consistent with the circumstances of his duties. Given the findings of JSRRC, the Board finds that there is sufficient credible supporting evidence that the appellant's claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a) (2009). Again, in light of the medical evidence linking the appellant's current PTSD to his corroborated in- service stressor, service connection for PTSD is established. ORDER Entitlement to service connection for PTSD is granted. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs